The pandemic saw employment tribunals almost grind to a halt, with all cases listed between 23 March and 26 June 2020 being cancelled and converted into preliminary hearings instead. This has resulted in a huge backlog of cases.
In the best of times, this would pose a challenge for tribunals to get back on top of things. But in what could be a perfect storm, I fully expect there to be a large spike in tribunal cases arising out of the pandemic. This is a dangerous combination that could see tribunals struggle to cope with an increasing backlog and a flood of new cases. But while this is bad news for claimants, there could be advantages for employers that could see everyone benefit in the long run.
The current situation
In early June, the presidents of the employment tribunals published a roadmap setting out how they anticipated hearings would take place over the coming months. Tribunals were not in great shape even before coronavirus, with many courts operating with limited resources.
How they manage over the coming months remains to be seen, but the plan is for the simpler cases, such as unfair dismissal cases and simple money claims, to start being heard again this month, with discrimination cases resuming from September or October. Ultimately, it will all depend on whether the tribunals have the resources available to manage, the technology that will be required and what the Covid-19 situation is in any particular area.
A future spike
The pandemic has thrown up all kinds of employment issues, from furlough to future redundancies. I expect to see a significant increase in claims being issued, particularly automatic unfair dismissal claims for a health and safety reason and/or whistleblowing.
Redundancies are likely to happen after the job retention scheme ends and I expect to see claims arising out of that. There may also be an increase in discrimination claims and unlawful deduction of wages cases relating to the implementation of furlough.
What does this mean for employers?
Although the prospect of mounting claims may be daunting for employers, the delay caused by the expected backlog will most likely present employers with some unexpected tactical opportunities. One of my cases, which was due to be held in June, is now scheduled to be heard in the middle of next year, showing how long claimants will have to wait for their day in court and chance of compensation. Delays could only get worse as the number of claims grows. This is bound to have an impact on claimants, some of whom will not want the trauma of a tribunal claim hanging over them for that long, and others who may find themselves in financial difficulty as a result of the delay.
All of these factors mean that claimants are more likely to enter into negotiations now, when they may not have in the past. In my experience some claimants want to have their day in court, but the long delays may encourage settlements. This is a good thing for employers as it means claims can be nipped in the bud, but also claimants may end up better off overall by saving on legal costs.
The pandemic has been a challenging time for employers and employees alike, but I fear we are only at the start. However, while a spike in claims is an unwelcome prospect, there may be a silver lining to the cloud that sees both parties get a swift outcome.
Melissa Chuttur is an employment solicitor at Devonshires