Employment tribunals backlog could trigger more settlements

Delays to employment tribunal hearings could put more pressure on workers to settle cases rather than taking years to fight them through the courts, lawyers have warned.

The court system is struggling to deal with a backlog in cases which has led some regions to fix dates for employment tribunal hearings as far ahead as 2022. 

The number of individual employment claims waiting to be heard reached 39,093 in the week ended on August 23, according to new Ministry of Justice figures. The backlog has increased from 31,693 cases in late March 2020 and is almost double the 19,000 outstanding claims recorded in March 2018.

The case backlog predates the Covid-19 pandemic in the UK but the situation has been made worse by the crisis because many tribunal buildings cannot be used to their full capacity because of social-distancing constraints.

With unemployment expected to soar later this year as chancellor Rishi Sunak winds up the furlough scheme which has helped an estimated 30 per cent of the workforce, lawyers are already seeing an increase in inquiries from people considering taking action against employers over redundancies.

Barry Clarke, president of employment tribunals in England and Wales, has already signalled that he expects the case backlog to “continue to rise significantly”.

He warned that this “would pose huge challenges to the ability of the [employment tribunal] to deliver justice within a reasonable time, which deeply troubled him,” according to recently published notes of his comments made to the June meeting of the national employment tribunal users committee

The government is trying to tackle the problem. Paul Scully, business minister, last week announced reforms, including deploying non-employment judges and permitting greater use of virtual hearings, to help employment tribunals hear more cases. 

But lawyers said the delays could force some employees into settling their claims rather than fighting on for months or years. 

“It is likely to strengthen the bargaining hand of all employers as staff may want to settle rather than wait years to go to court,” said Raoul Parekh, partner at employment law firm GQ Littler. “Not only does it mean more people will settle who otherwise might have fought but they will also settle for less than they might have achieved,” he added.

Acas, the conciliation service, received 33,169 redundancy-related calls in June and July, a 169 per cent rise on the same period of 2019. Law centres, which advise clients on their legal rights, are also seeing an increase in employment inquiries. 

Audrey Ludwig, director of legal services at Suffolk Law Centre, said the number of inquiries had gone up from 10-15 a month to 51 inquiries between mid-April and the beginning of June and said she was seeing some cases settle. “Employers might offer a few thousand or people face waiting a year or two years for a hearing,” she said.

Pam Kenworthy, specialist legal adviser to the Equality and Employment Law Centre in Liverpool, agreed. “There is a risk that claimants who are desperate for cash may settle out of court and will get lower settlements,” she said.

The MoJ said in a statement that it was “rolling out new video technology, working to recruit more judges and increasing sitting days to make sure cases are heard as quickly as possible”.

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