Workers seeking redress face delays as tribunal backlog grows

Workers treated unfairly by their employer face waiting up to two years for legal redress, because a backlog of cases in the employment tribunal system has become much worse during the coronavirus lockdown.

Courts have been struggling to deal with a steady increase in employment cases since 2017, when the Supreme Court ruled that workers should not be charged fees for bringing lawsuits against their employers. Lawyers fear the system will be unable to deal with a surge of new claims as the pandemic presents employers with dilemmas over recalling or laying off furloughed staff.

“I’m expecting chaos,” said Angela Brumpton, a partner at the law firm Gunnercooke. “There are going to be lots and lots of redundancies — and every one is open to challenge.”

New claims by individuals in January to March of this year were 18 per cent higher than in the same period of 2019, according to Ministry of Justice statistics. The outstanding caseload was 19 per cent higher, and it took 38 weeks on average for cases to be closed — five weeks more than a year ago.

With face-to-face hearings still on hold, and remote hearings used largely for case management, the pre-pandemic backlog has grown steeply: the number of outstanding claims — which have not yet even been listed for hearing — rose by more than 4,300 between 1 March and 24 May.

Lawyers with more complex cases that have been adjourned over the past three months say they are now being relisted with dates in 2021 or even 2022 — if they are being given new dates at all.

Elizabeth McGlone, a partner at Bindmans, is handling a claim submitted in 2018 that will now be heard in April 2022. Her client, who has serious health conditions, is seeking reinstatement in a job she lost after a long disciplinary procedure. She has not worked since and by the time her case is heard, remembering what happened four years earlier will be a stretch, Ms McGlone says.

Ms Brumpton is defending claims of sex discrimination and unfair dismissal in a case that will be heard in June 2021, two years after the events in question. Her client has divested the business concerned in the meantime. It was “jaw dropping” that a delay of this length is becoming normal, she said.

Delays of this length are likely to deter employees from taking action against an employer, while potentially making employers less inclined to contest unfounded claims if they can settle them more swiftly.

Nick Denys, policy adviser at the Law Society, argues the delays will also make it hard to establish the case law needed for employers to deal with fresh dilemmas presented by the Covid-19 crisis — such as how to choose which employees should return from furlough or be laid off.

Barristers say employment tribunals seem to have suffered more disruption than other parts of the courts system. This could be because of the cramped premises that have little scope for social distancing. But the system was already strained because it had been pared back, with many court buildings closed, in the years when fees held back the volume of claims.

The Ministry of Justice is looking at reintroducing fees — a move that would be highly controversial, since the Supreme Court found that the regime in place between 2013 and 2017, with fees of up to £1,200 for claims such as unfair dismissal or equal pay, impeded access to justice.

Officials have asked the Law Commission to set out proposals on how a fee regime could work in future, the Times reported last week. An initial meeting has since taken place to discuss whether the independent think-tank should review the law in this area. The MoJ said such discussions were “completely normal practice” and that no decision had been made.

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