Since the abolition of tribunal fees last summer, there has been a big question mark over the extent to which employers may see more cases finding their way to tribunal. That speculation started to recede when the president of tribunals in England and Wales told us at the end of last year that since tribunal fees were abolished, the number of single claims received by the tribunals had doubled, and that this was a national trend rather than a regional one. This was then confirmed by the statistics released by the Ministry of Justice on 8 March 2018, which, for the period October to December 2017, showed that single claim receipts had increased by 90 per cent.
The question then became how the tribunals were going to cope with that increased demand. Not well, was what we were hearing from members of the Employment Lawyers Association (ELA). So we decided to take a closer look.
Our members’ survey ran from 22 February to 21 March 2018. Almost 10 per cent of our members responded, and the results were alarming. More than 75 per cent were experiencing an increase in the time tribunals were taking to deal with the service of claims, while 90 per cent of respondents were experiencing delays in dealing with interim paper applications and other correspondence.
Some 53 per cent reported delays in telephone calls being answered, half (50 per cent) had experienced delays in receiving reserved judgments and 45 per cent reported postponements of a hearing because of a lack of judicial resource.
We also discovered that particular tribunals were more affected than others – especially those centred around London such as London Central, London South, London East and Watford.
So how do these findings affect employers? First, businesses now need to be far more aware of potential claims from their workers, particularly those who may have previously fallen by the wayside because they were simply not economically feasible when fees had to be paid. The practice that some employers may have become used to – taking a calculated risk that they would not be taken to tribunal even if they did not do things exactly by the book – is now far more risky.
Running cases once they get to tribunal has become more of a challenge because, understandably, they simply do not have the judicial or administrative resource to cope with such a significant increase in demand over such a short period of time.
The senior judiciary and the Ministry of Justice are well aware of the problem and are undoubtedly trying to fix it, but this is going to take time. On current best estimates, it will take at least a year to have recruited and made available additional employment judges to hear cases. In the meantime, employers have got to be light on their feet in dealing with issues as they arise, especially if they (now) have the potential to become litigious if not resolved. Better practices and procedures will be required, and arguably much more focus on workplace mediation and using Acas to seek to resolve disputes before proceedings ensue will become the order of the day.
We should also not forget that whatever the increase in the number of claims reaching tribunal at present, we are still far short of the level we experienced before fees were first introduced. So there is a real possibility that the pressures on employers and the tribunals have yet to run their full course.
Richard Fox is chair of ELA’s tribunal resources working party and head of Kingsley Napley’s employment department