Pre-pandemic, the Tribunal system was already creaking under the weight of claims, with some Tribunals not listing final hearings for over a year after initiation of a claim. The pandemic has increased the backlog, as well as provided a context for an increased number of potential claims on matters like furlough, unfair redundancies, and disputes over health and safety concerns as people return to work.
The system is adjusting to this new normal, with increased emphasis on technology and remote hearings. However, we can certainly expect increasing delays to be an ongoing feature of proceedings, and the parties need to be realistic that final hearings will be a long way off, and that their day in court may well be conducted remotely.
Court Arrangements for Employment Tribunals
On 1st June 2020 the Presidents of the Employment Tribunals in Scotland and England & Wales published their latest FAQ document. This is designed to provide Tribunal users with answers to frequently asked questions (such as “My hearing has been cancelled due to the pandemic. When will it be rearranged? Will my case just go to the back of the queue?, “Are there any types of work that the Employment Tribunal is prioritising?”, and “Given the problems caused by the pandemic, will the Employment Tribunal extend the 28-day deadline by which a response should be provided?”). It is a useful read for anyone currently bringing or defending proceedings. It also provides an aspirational “road map” for how it is envisaged that the number and type of hearings being heard can gradually ramp up in the coming months, with much emphasis on the use of Cloud Video Platform (CVP), the Ministry of Justice’s preferred video platform. See here for the full FAQs document:
Nearly all cases listed for April, May and June 2020 were postponed and re-listed. This has increased the already significant backlog and in some areas (with London and the South East being worst affected) individuals are seeing their cases re-listed for late 2021 or even 2022.
Since the start of July some hearings have been progressing, mainly via CVP, but some are taking place in person with adjustments to the norm to allow for social distancing.
With a challenging labour market where finding new ways of replacing earnings are more limited, it seems likely that an increasing number of disgruntled employees will feel that there is no option but to pursue their complaints. However, the long route to resolution may be off putting for some individuals, and many employers will bank on the fact that Claimants will run out of steam long before they get to a final hearing.
Employers in receipt of claims ought to consider collecting documents and witness statements relatively early on in proceedings – it would be all to easy to delay preparations if a hearing isn’t going to be for many months or even years, but memories fade, documents can get misplaced or deleted, and staff witnesses can move on, making it more difficult to put together a coherent defence.
Ultimately prevention is better than cure, and for employers, handling employee relations with care in the first place is of course the best way to reduce your exposure to claims. It is also prudent in many cases for the parties to consider whether it would be best to try to resolve issues through internal grievance procedures, ACAS conciliation, or settlement discussions.
At Julian Taylor Solicitors we are experienced in bringing and defending employment claims. If you need assistance please do contact us on 01869 351833.