The wheels of justice really do grind slowly. Anyone involved in an employment tribunal currently faces an average wait of around a year for their case to be heard. The latest available data suggests around a 49-week wait just for the preliminary hearing with, according to the Ministry of Justice, more than 475,000 cases outstanding at the end of 2022.
Delays have been attributed, in part, to the Covid pandemic, but the problems go back much further than that – to 2017, for example, when tribunal fees were declared unlawful, leading to an influx of claims.
No one wants a tribunal hanging over them for so long, but some employers, particularly larger ones, may be better placed to wait it out. Not only are they likely to have the necessary cashflow, and in-house HR and legal experts, they may also not want to settle at an early stage in case they are seen as a pushover by other employees.
It is a different picture for small and medium-sized organisations, which are likely to be far more worried about the potential damage to their reputation and the cost, not least of hiring external advisers if they do not have any of their own. Given the impact on their insurance premiums coupled with how rarely costs are awarded against a claimant, SMEs will typically have a lot more to lose.
Of course, employers may not want to settle if they believe they have done nothing wrong – it is not just aggrieved employees who want their day in court. However, with court delays showing no signs of abating, those who do should be prepared and carefully consider the following before making their decision:
- Thorough investigation. Businesses that end up in the tribunal must make sure they have nothing to hide – or a judge will find it. Respondents should have made every effort to thoroughly and appropriately investigate the allegations made and be able to evidence that in court. If this has not been done and/or if there is any element of doubt, it is better to be aware of this at an early stage as conceding all or part of the claim may be the most sensible and cost-effective option.
- Mediation before litigation. It is good practice to explore mediation as a possible means of resolving the matter before heading straight to court. Particularly given the time pressures on the system at present, parties will be called out by a judge if they have not at least attempted to mediate first.
- Examine the evidence. Every case is reliant on evidence, which can be both physical, such as emails and recordings, and from witnesses, which is where long delays pose the biggest problem. Witnesses are usually key to any final hearing, but memories change and recollections fade and the risk is that by the time that comes around they may no longer be confident in their version of events. They may have got a new job or moved away and decided to withdraw their support. They may even have died or be too ill to take part. It is therefore vital to at least get their accounts down on paper at an early stage.
The Ministry of Justice says it is taking steps to try and reduce court delays, but progress is painfully slow and likely to remain so for the foreseeable future. Sensible employers should weigh up the pros and cons before deciding to proceed or whether it would be more prudent to try and settle.
Hannah Dowd is an employment solicitor at Jackson Lees