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Many new tribunal claims may not be heard until 2020

11 Dec 2018 By Maggie Baska

Lawyers warn cases are being pushed further into the future, as employers are told to take steps to mitigate the impact of delays

Some new employment tribunal claims may not be heard until 2020 at the earliest, according to an update from the employment tribunal National User Group (NUG) which will increase concern among employers and campaigners about a significant slowdown in the system.

The minutes of the group’s September meeting said there had been a 165 per cent increase in single claims, which it regards as the most reliable measure of tribunal workloads, compared to last year.

This figure echoes the most recent figures from the Ministry of Justice, which suggested the number of outstanding single cases was 130 per cent higher in the second quarter of 2018 than the same period in 2017.

During the meeting, Michael Reed, principal legal officer for employment for the Free Representation Unit, raised concern about how far into the future tribunal cases were being listed, noting that cases in Croydon were being pushed into 2020.

With waiting times this long, Raoul Parekh, partner at GQ Littler, told People Management employers should urgently ensure they have the HR practices in place to stay out of the tribunal process altogether.

“If that’s not possible, one thing for employers to do is gather and collect all notes and documents they can ahead of the tribunal hearing,” he said, adding that gathering the necessary evidence to defend a case can be more difficult the longer employers wait.

Collecting documents early can also decrease legal spend as it can keep employers “ahead of the game” in bringing evidence before solicitors. 

Judge Brian Doyle, president of the Employment Tribunals England and Wales, acknowledged during the NUG meeting that lengthy tribunal wait times could be down to the “reduced number of salaried judges”, and said he hoped the allocation of new judicial resources in 2019 would ease the problem.

In June, the Judicial Appointments Commission launched a recruitment exercise to find 54 salaried employment judges in an effort to meet the demands of the system since the abolition of tribunal fees in 2017.

But the potential impact of additional judges has been questioned by lawyers working in the profession.

Katherine Newton, employment law barrister at Old Square Chambers, tweeted that a colleague had listed a multi-day hearing at Croydon Employment Tribunal for 2021, and said Manchester Employment Tribunal now listed 10-day hearings in 2021. 

“Are the 54 Employment Judges being appointed nationally in the New Year really going to make a noticeable improvement to these sorts of waiting times?” she said.

Many lawyers speaking to People Management also said they knew of cases being listed beyond 2020.

Tim Goodwin, senior associate at Winckworth Sherwood, said he spoke to a barrister who brought a tribunal claim to Croydon earlier this year that had been listed to be heard in late 2020. He added the increase in waiting times for listings showed the pressure the courts and tribunal system were under.

“The employment tribunal system has been defunded when the fee regime collapsed,” he said. “All elements of civil law have faced cuts, and the government cut back on judges.”

Parekh also said the wait time for cases was not a surprise, adding he had heard from other barristers that cases in south London were being listed for 2021.

Paul Holcroft, associate director at Croner, said he could see more employers turning to settlements to “get rid of the issue at the earliest opportunity”. 

Holcroft said: “While this may be good practice to get rid of the claim, it calls into question whether these delays are prohibiting access to justice, as neither party may have the opportunity to put forward their case where the matter is resolved through a settlement for reasons of time.”

The ability of settlements to provide justice has also been questioned by the Women and equalities committee, which heard during a recent evidence session it was “very common” for settled cases to involve the use of non-disclosure agreements (NDAs).

The committee has previously recommended the government clean up the use of NDAs in cases involving sexual harassment in the workplace, and has launched an inquiry to look at the wider use of NDAs in discrimination or harassment cases

The deadline for responses and evidence in the NDAs inquiry has been extended until 31 January 2019.

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