The Law Society has called on the government to take urgent action to clear the backlog of 40,000 existing employment tribunals claims to make way for the anticipated 'avalanche' of post Covid-19 claims.
Hearings are regularly being listed more than 12 months into the future - and it's not uncommon to be given dates in 2022! The Law Society argues that this essentially means that many people are denied justice.
Employment tribunals were set up in the 1960's and were designed to resolve workplace disputes quickly and with minimal cost. However, employment laws have expanded significantly since then and proceedings have become more complicated and go on for longer. For example, it's now rare for even a relatively straightforward unfair dismissal to take less than two days.
The government argued that tribunals were under pressure because too many people brought claims that, it said, had no merit. In 2013 it introduced fees which were abolished in 2017, after the Supreme Court decided that the fee regime was unlawful. When fees were in place, the number of single claims (brought by one person) was around 4,300 per quarter - a reduction of 68% on previous figures. Since then, claims have steadily increased - although they are still below the rates pre-dating fees. The most recent figures are for January to March 2020 and these indicate that 10,663 single claims were received during that period, an increase of 18% on the same quarter in 2019. But, these figures don't reflect the disruption caused by the lockdown and downturn and, if the recent tripling in the numbers of calls to ACAS's redundancy helpline is anything to go by, claims are likely to significantly increase.
So, if the tribunals are already in crisis, things could get significantly worse if the numbers of people bringing claims pans out as anticipated.
What changes does the Law Society recommend?
One of the biggest changes the Law Society are pushing for is to double the time limit to start proceedings in employment tribunal claims from three to six months.
They also want employment tribunals to be allowed to accept claims that are out of time by applying the 'just and equitable' principles rather than the narrower (and more difficult) analysis of whether it was 'reasonably practicable' to bring a claim in time. This is the same position we saw taken by the Law Commission in their report of 28 April 2020 which suggested that sweeping changes should be made to make employment tribunals fit for purpose. You can read our summary here.
Will these changes get rid of the backlog?
Even if the government accepts these suggestions, increasing the time limit may lead to an increase in the number of claims submitted as people have more time to take advice and decide whether to bring a claim. Also, as with all changes to time limits, there will inevitably be complications and satellite litigation which, alongside a lower standard for accepting claims out of time, may lead to more claims rather than less.
Last year, the Presidents of the employment tribunals in England, Wales and Scotland acknowledged that the system was failing and said that new systems would be introduced to help speed matters up. These included introducing a new case management and phone system, recruiting new judges and increasing admin staff. Although more judges have been recruited, progress on some of the other measures has been impacted by the tribunal's covid response and it remains to be seen how long it will take before things get back on track.
Need more information?
We'll let you know if the government accepts any of these proposals. In the meantime, if you have any specific queries, please contact Donna Seferta.
“We strongly support the idea of raising the time limit for bringing all employment tribunal claims to within six months,” said Simon Davis, president of the Law Society. “Different limitation periods can often cause confusion, especially when parties are not legally represented. The three-month time limit can also force claimants to file claims even if they are still open to a negotiated settlement. “Genuine mistakes around limitation can result in individuals being barred from seeking justice in their case."