Covid causing ‘perfect storm’ of outstanding tribunal cases, report warns

Employees reporting furlough fraud among those facing delays of a year or longer, as pandemic brings increased demand and reduced capacity   

Whistleblowers sacked for raising concerns about employers breaching Covid-19 guidelines are among those being denied justice because of a record backlog of cases at employment tribunals, according to a new analysis of government data.   

It warned outstanding claims were set to exceed half a million by spring next year, amid a "perfect storm" of rising demand and restricted capacity.

The Tribunal trouble report, released today by Citizens Advice, also revealed that, in the first half of this year, nearly three in 10 (29 per cent) unfair dismissal cases were abandoned by employees who faced average waits of more than nine months to get their cases heard.

“The increased delays to redress arising in the pandemic threaten to effectively deny redress altogether. Some claimants may conclude that withdrawing their case now is preferable to a lengthy limbo period and an unknown outcome at tribunal,” the report said.

Christine Trueman, employment adviser at Citizens Advice in Taunton, said she was starting to see more people made redundant after blowing the whistle on unsafe coronavirus practices in their workplace.

"By the time someone decides to pursue a tribunal they're often already under a huge amount of stress. Then I have to warn them that the earliest they're likely to get a date is this time next year. If it's a complex case regarding discrimination, we're probably talking about 2022,” she said.

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“The waiting and the complexity can grind people down until they're so scared and exhausted they withdraw their case." 

Citizens Advice said it has helped 28,000 people with redundancy issues since the March lockdown – a four-fold rise on the same period last year. Cases included employees who were self-isolating told to come into work, and workers made redundant after refusing to work while on furlough.

The report stated: “Many have faced redundancy because of their clinical vulnerability to coronavirus, caring responsibilities, or for flagging health and safety concerns or whistleblowing.”

The warnings over whistleblowers being unfairly dismissed or made redundant were echoed by new figures from whistleblowing charity Protect, which showed that 41 per cent of whistleblowers calling its advice line between March and September had been ignored when they had raised Covid-related concerns with their employer. One in five (20 per cent) of them were facing dismissal.

Andrew Pepper-Parsons, head of policy at Protect, warned that “justice delayed is justice denied”, and called for emergency measures to extend the time limits on employment tribunal actions.

The Citizens Advice report said there were 455,000 outstanding single and multiple claims by the end of June, with the backlog of single claims alone reaching 37,000 – surpassing the post-2008 financial crisis peak of 36,000. “In its current state, the employment tribunal system is not equipped for the redundancy crisis – which will bring a surge in tribunal claimants,” it said.

Paul Holcroft, managing director of Croner, said that, while tribunal waiting times had been a significant issue before the coronavirus outbreak, the pandemic had “significantly increased” the backlog. “It is likely no surprise that, as employers have had to face unprecedented situations this year, they have not got everything right,” he said.

“Nevertheless, these figures send a stark reminder to businesses everywhere that employment law is still relevant, and employees are very likely to bring claims if they feel their employer has operated in breach of it.” 

The report also said that while temporary Nightingale courts had been established to boost capacity, and audio and video technology was increasingly used to conduct remote hearings, emergency funding was needed to enable tribunals to clear the backlog of cases. It called on the government to fast track its plans to create a single enforcement body for employment rights, which would relieve the pressure on tribunals.

An HM Courts and Tribunals Service spokesperson said: “To support the tribunal system we are installing new video technology, recruiting more judges and increasing sitting days.”

And a spokesperson for the Department for Business, Energy and Industrial Strategy said: “We have consulted on the creation of a new single enforcement body, which will provide a clearer route for vulnerable workers to raise a complaint and get support. We intend to introduce the body as part of the employment bill.”