Judges failing to use powers to dismiss claims as tribunal backlog worsens

18 Feb 2020 By Elizabeth Howlett

Latest figures send a ‘clear message to employers’ that hearing waiting times will continue to grow

Employment tribunal (ET) judges have been criticised for not exercising their power of early dismissal for claims unlikely to succeed despite a growing backlog of cases.

Judges are able to dismiss a claim that is out of their jurisdiction, or that they believe has no reasonable prospect of success, before it reaches a court hearing using a procedure called Rule 27.

However, data from the Ministry of Justice, analysed by law firm GQ Littler, showed judges did not use this power in any of the 94,330 new cases received by ETs in 2018-19. GQ Littler found the backlog of claims increased by 39 per cent to 26,664 in the year to 31 March 2019, up from 19,116 in the previous year.

Raoul Parekh, partner at GQ Littler, said judges not exercising this power was contributing to the worsening backlog of claims. He warned employers’ attention could end up distracted from more important strategic management issues because of uncertainty over claims.

“The high volume of claims reaching a first hearing is contributing to the worsening backlog. This backlog of cases is prolonging the process for both employees and employers, who are being left in the dark over when their case will be resolved,” Parekh said. “If the backlog and waiting times continue to grow, employment tribunals will cease to be an effective body for employees or employers.”

However, James Medhurst, employment lawyer at Fieldfisher, said in practice judges often did use their powers of early dismissal, even if this was mainly limited to “straightforward issues” such as when a claim was brought out of time or the claimant had an insufficient length of service. The problem, he said, was that use of these powers often did not prevent a claim from still proceeding, meaning under-utilisation of powers to dismiss wasn’t necessarily the whole picture in preventing a backlog of cases.

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"Even if one part of a claim is struck out, there will often be other issues that are allowed to proceed, so it rarely results in disposal of the entire claim,” he said.

Medhurst added that he was not surprised judges were reluctant to strike out claims using Rule 27 or other procedures: “When claims are struck out using other rules, the decision is often overturned on appeal, with the result that extra legal costs are incurred rather than being saved."

Nonetheless, Paul Holcroft, associate director at Croner, said the statistics sent a “clear message to employers” that they will continue to face a long wait over tribunal hearings. Holcroft said it was “strongly advisable” for employers to consider how much time, resources and attention a tribunal claim could easily take away from their usual business operations, and to ask themselves if it was worth it.

“By ensuring they are following appropriate and lawful employment procedures, employers can aim to avoid being in this situation,” he said.

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