Karen Holden from A City Law Firm recounts how the Employment Tribunal system has fared during the pandemic and gives advice on addressing the huge delays.
Employment Tribunal delays have been significant since 2017 when fees were abolished and the number of claims increased. The coronavirus pandemic has only exacerbated the delays in an already creaky justice system. What is the real-world effect of such delays to the delivery of justice and is it likely to get worse?
Fees for claims in the Employment Tribunal were declared unlawful by the Supreme Court in 2017. This led to double the number of claims over the following two years so by 2019 Tribunals were already heavily oversubscribed. In 2019 the Employment Lawyers Association surveyed its members regarding these delays and most members responded that claims were taking over a year to be listed for a final hearing. Costs were already increasing unnecessarily at this time as sometimes urgent applications were required due to the lack of response to Employment Tribunal correspondence.
It was in these circumstances that the coronavirus pandemic hit. Many cases listed for hearings in April, May and June of 2020, at the height of the pandemic were turned into case management conferences by telephone, this being more of a preparatory hearing for directions, rather than hearing the full legal claim. All of those hearings, many of which may have related to issues arising more than a year before were then required to be re-listed.
From 29th June 2020, many hearings did go ahead on their listed date. The courts began using the Ministry of Justice’s Cloud Video Platform (CVP) system, which is currently used for many cases and comes with its own challenges and benefits. Litigants in person sometimes find the technology challenging and for represented parties there is a certain clumsiness when representatives take instructions; the whole hearing must be paused while a separate phone call takes place rather than the litigant simply conversing with their representative as would happen in person in the court.
Additionally, the very real ‘zoom fatigue’ means that for longer trials and witness evidence, the platform is less than ideal. Judges, very used to paper bundles, are now having to quickly grasp huge electronic court bundles which may not be their preference. However, some welcome these changes as they minimise travel costs, reduce paper copies and courier fees and make for more agile and faster hearings so it does depend on everyone’s capacities.
Some hearings at this time were earmarked to be held in person if they were judged not suitable to be heard remotely. This choice, of course, caused further delay to the Employment Tribunal’s ongoing backlog.
From August 2020, some courts re-opened, using specific rooms where social distancing was possible. For some hearings all parties have been present and for others, parties or witnesses have been able to appear by video link. This has reduced listing issues as it is easier to get people together virtually than in one location , which can sometimes involve a long commute.
This re-scheduling of three months’ worth of cases, however, was then disrupted again by the plethora of new cases. Many of these stemmed from the furlough process and others from health and safety concerns of employees being told to return to the workplace. As the economic situation has worsened following the pandemic, the pressure on employees has increased due to the difficulty of finding a new position. Therefore, the number of cases in the Employment Tribunal has again increased.
Since June 2020, Employment Tribunals have prioritised pandemic-related dismissal claims on health and safety grounds.
In the defence of HMCTS, cash injections have been provided, including £80 million to the Courts and Tribunal service to help the courts adapt during the pandemic. Part of this funding was to open nightingale courts, of which three are Employment Tribunals.
Many working in this area, however, consider that extra emergency funding is needed to increase capacity and allow the Employment Tribunals to clear the backlog of cases.
A major way the ongoing delays might impact a case is due to the ongoing stress to the claimant. A delay of two to three years may see a claimant withdraw their case either due to the funds required for legal fees for that period or simply because they cannot mentally sustain the lack of closure. In order to move on, they are likely to need to put the matter behind them and the lack of any closure from the Employment Tribunal will exacerbate the difficult feelings they may be having about their previous employment.
For a two- or three-year period to pass without proceedings being heard, the memory of any witnesses or the parties involved could also fade significantly. Employees can move on in that period and may lose contact or become reluctant to be involved if they cannot be sure of their memory.
Further, for employers the reputational damage of having a claim hanging over them for a long period of time can be difficult as can having senior management distracted by claims when there are far more pressing tasks within the business.
For both sides delays are unhelpful and can tend to add more animosity between the parties, dragging the claim out even further.
Where possible, witness statements for either employers or employee should be drafted at an early stage in proceedings before memories fade.
Settlement should be considered by both sides; however, the delay is likely to be more useful for employers in bringing employees to the negotiating table.
For employers, grievances should be dealt with quickly and negotiations should be facilitated internally to try to minimise the number of claims brought to the Employment Tribunals in the first place.