Many of us will remember the government’s imposition of fees for employment tribunals and the significant drop in cases being brought that followed. The Supreme Court judgment in 2017 that ruled the fees were unlawful reversed the change and many predicted that we would see an upsurge in cases and a commensurate backlog in those that have been resolved.
And so it has transpired. Figures released by the Ministry of Justice for the final quarter of 2022 show that just short of half a million cases fall into the category of “caseload outstanding”. As concerning is the finding that many of those who have brought cases may be waiting at least a year for some sort of resolution to their claim. In February 2023, the Ministry of Justice published figures which showed that the average waiting time between the submission of a tribunal claim and its first hearing (not even the final outcome) has increased to 49 weeks; it was 30 in 2011.
The upshot of this is that the number of businesses trapped in a tribunal limbo was, at the end of 2022, 44,758 – waiting on single claim resolution – and over five thousand facing multiple claims. For businesses caught in this position, the lack of closure can generate significant amounts of stress (which feeds into mental health issues), take up valuable time and cost money in terms of obtaining legal advice and representation not just at the tribunal hearing but in the months before that, as attempts are made to resolve the issue without having to attend the tribunal.
Many employers would like to know whether they’re going to be facing a significant bill for compensation or if the whole thing will be decided in their favour and they can move on with their business. When the claim eventually comes to a hearing, the chances are higher with long delays that witnesses may have trouble remembering exactly what happened, or employees with testimony to give may even have left their positions and be untraceable. Faced with such uncertainty and the ravages of time on what may have seemed a strong case at its inception, some employers may agree to a settlement that’s not in their favour just to have done with it.
It’s not a problem that looks like going away any time soon; the tribunal system has accepted more cases than it has disposed of for virtually all of the period since 2015. And it’s not just employment cases; there is a similar, if less well-publicised backlog in regulatory, criminal and commercial cases.
Businesses will, therefore, have to accept that this situation will be with us for the foreseeable future and make provision for it.
That provision, sensibly, has to include a proactive element; if the prospect of almost indefinite delays to a tribunal hearing can be avoided, it certainly should be. Better by far to have processes and systems in place that can circumvent the kind of problems that lead to a tribunal claim in the first place.
Some businesses, particularly the smaller ones, don’t have a huge support network or the access to expertise in-house that larger businesses enjoy. They may be finding their way in the commercial world without realising what risks can lie ahead for them. Access to guidance on policies and procedures that they can implement almost from day one of the business can be a real asset, enabling them to stop most problems before they start.
Similarly, having an advisor on hand who knows their way around Alternative Dispute Resolution (ADR) can help to take the heat out of a dispute that might otherwise result in a tribunal claim. Such advisors can be expensive but there are support services available that include ADR and these can be significantly cheaper for struggling businesses.