The survey, commissioned by the Employment Lawyers Association (‘ELA’) has revealed that the Employment Tribunal system is crumbling under a chronically underfunded system, and is in such a poor state that it now threatens access to justice for workers and employers. The Tribunal system is described as functioning at a “snail’s pace”, with Tribunals in London identified as scoring particularly poorly.
The survey ran from April to May 2021 and was put together by the ELA Legislative and Policy Committee. It was led by Caspar Glyn QC. The survey was managed by Curzon Green’s Jennifer Sole, also of the L&P Committee, through an external professional research company.
The results of the ELA survey made national news hitting the front page of the Legal Section in The Times. The survey received 731 responses on behalf of individual lawyers and representatives of their firms, chambers or organisations. These responses highlighted the incredible shortcomings of the system and the dire need of adequate resourcing.
The survey showed that more than 40% of lawyers are waiting in excess of a year for their clients’ cases to be heard at the Tribunal. Of cases reported with delayed Final Hearings, over 80% of cases are from events that happened at least six months ago and over 90% of those who responded to the survey have Final Hearings being listed at least six months into the future. With our own Team’s experience of the delays, these statistics are not surprising.
This backlog of cases and delays, coupled with the COVID-19 pandemic, has threatened access to justice for workers and employers within a reasonable period of time.
The Ministry of Justice has attempted to address the issue by promising investment of “£76 million to speed up our tribunals, install new video technology and recruit more judges”. This promise, if delivered upon, is reassuring for the future of the Tribunal system. The recent introduction of remote video hearings is proving to be a partial success story. It is yet to be seen whether this will be enough for the stretched system though, with longer hearings continuing to be listed into 2023 and beyond.
Remote video hearings were considered by more than half of responses of the survey to be very effective, and 80% more likely to consider them fair when compared to March 2020. However, client contact during hearings prove to be an issue, with 60% of responses highlighting problems with this, likely due to the technical limitations of the current software.
Our Jennifer Sole commented that:
“Employment Tribunals have led the way in pioneering video hearings. They have been a great success in hearings and trials of fewer than three days. We believe they are here to stay. However, there are three clear ways to leverage the Cloud Video Platform (CVP) used for these hearings for even greater success. The first is to make high-quality explanation of the process by the sitting Judge a routine element. The second is to remain conscious of the connectivity issues, difficulties with cross-examination, and the lack of communication channels to clients and advocates, which are the biggest issues impacting remote hearing effectiveness; and finally, implement better chat functions, screen sharing, and document transmission functionality on the CVP. This would make the system even more effective.”
According to the survey findings, ELA Members do believe that remote hearings are here to stay, describing them as “fair, just and effective”. It is envisioned that this would be the way forward for reducing delays, with the ambition that technical solutions are found in line with Jennifer Sole’s comments above to give the system some much needed efficiency and workability.
What is starkly apparent is that the already stretched Tribunal system, combined with the COVID-19 pandemic, has caused the system to reach breaking point. If greater action is not taken now or into the future, it is feared that there will be an increase in the number of workers who decide to not pursue their viable claims or are put under pressure to settle claims early, wanting to avoid stressful, costly and protracted litigation which could go on for years and years before reaching a Final Hearing, at a time when they may well have just lost their jobs.
If you are an employer or worker bringing or facing a claim and have further queries on what this may mean for you, we encourage you to contact our experienced employment team for specialist advice and assistance. Contact us here or by email: email@example.com.