How to get around the employment tribunal backlog

Tracey Guest from law firm Slater Heelis advises on what employees’ options are if they are worried about the impact of the employment tribunal backlog on their case.

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Tracey Guest from law firm Slater Heelis outlines the impact of Covid-19 on the employment tribunal system and ways around the large backlog that has worsened as a result.

This has been a challenging year for the employment tribunal system. HM Courts and Tribunals Service report that, since mid-June 2020, claims received have been above pre-Covid levels in both the employment tribunal and employment appeal tribunal.  However, disposal of cases across the tribunal system has only been 75% of pre-Covid levels between March 2020 and February 2021 due to the increased number of claims as well as tribunals operating on significantly limited capacity during the first lockdown.

Whilst the tribunals are slowly returning to full capacity and their disposal rates are increasing, there remains a significant gap between receipts and disposals and the backlog has grown by 45% since the end of February 2020. The majority of these disposals have been conducted via Cloud Video Platform [CVP] as remote hearings. Whilst some cases are being listed over a year in advance, other areas of the country are listing multi-day cases such as discrimination or complex unfair dismissal claims between 12 and 18 months after the date the claim was submitted.

Pre-litigation settlement

From 1st December 2020, the extension of the ACAS early conciliation period to six weeks has been welcomed in lieu of the previous standard month with an option to extend for a further two weeks. Although this extends the conciliation period and potentially allows parties more time to consider settling disputes pre-litigation, it also takes into account that, with the increase in the number of tribunal claims during the pandemic, ACAS themselves have been experiencing backlogs and there have been delays in contacting employers to conciliate.

The tribunal has put in place other steps in order to redress the backlog such as:

– 16 new Legal Officers commencing work in April 2021 to assist with case management and progression;

– The roll-out of new case management software allowing files to be administered remotely;

– The launch of a new virtual region in addition to the 10 existing geographic regions with the ability to hear cases from across the country over CVP.

Advice

Whilst these measures are now largely in place, our personal experience at Slater Heelis is that there have been delays in forwarding ET1 [the claim forms you need to file before taking action at a tribunal] to employers requesting a response and in listing cases for preliminary or substantive hearings. On that basis, when approached for preliminary advice on potential claims, from the outset we have been advising that, due to backlogs caused by the Covid-19 pandemic, it could be at least 12-18 months before a claim is listed for full hearing.

This, along with legal fees, undoubtedly impacts a potential claimant’s decision-making as to whether or not to pursue a claim, particularly where their employment has terminated and they have yet to secure a new role. We are also finding that potential claimants are concerned that, if the matter is heard remotely, it may not have the same impact as a hearing in person.

Subsequently, whilst we would always encourage employees to exhaust all internal avenues of resolving an employment dispute, utilising policies and procedures covering grievances and mediation, where this fails, we are advising employees to consider approaching employers to resolve disputes on a ‘without prejudice’ basis where appropriate as a means to achieve a swift resolution the matter. Where successful, this can often result in compensation (subject to settlement terms) for the employee, but we appreciate that there may be a perception that an employer has avoided any formal reprimand or criticism for their alleged conduct.

Early conciliation

If unsuccessful in resolving the matter internally or via without prejudice correspondence and even where cost and time factors may impact their ultimate decision as to whether to pursue a claim in the tribunal, we would always advise potential claimants to actively engage in early conciliation and informing the ACAS conciliator that they wish to do so. Whilst this is a compulsory step in advance of pursuing any claim in the employment tribunal and allows employees to keep their options open, it is also an additional opportunity to promote conciliation between the parties in an attempt to find common ground and resolve the matter without resorting to lengthy litigation, which can be costly for both parties.

Whilst there is no substantive evidence that employers are relying on the delays caused by the tribunal backlog as an opportunity to engage in unreasonable and/or unlawful conduct, those in receipt of legal advice may be aware of the impact it has on the likelihood a former disgruntled employee will pursue a claim, given the length of time it would take for the matter to reach substantive hearing, and they may refuse to engage in settlement discussions and take the view that it is more advantageous to wait to determine whether the employee/ex-employee will formally issue a claim in the tribunal.



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