Tribunals struggle as backlog of cases reaches highest level since fee abolition

26 Feb 2019 By Maggie Baska

Employment lawyers say courts urgently need larger budgets and more staff to deal with rising caseloads

The number of outstanding employment tribunal cases has reached its highest level since the scrapping of tribunal fees in July 2017 and is likely to rise further given the pressures on the system, according to new analysis.

There were 23,700 outstanding cases in the system from July to September 2018 – the last quarter for which figures were available – which represented an increase of 77 per cent on the same period in 2017, said GQ|Littler’s analysis. 

The research, based on HM Courts & Tribunal Service (HMCTS) records, also found tribunals received 36,900 single claims in the year ending September 2018, an 88 per cent increase from 19,600 the year before.

Previously released figures from the Ministry of Justice suggested the number of cases had been rising consistently ever since fees were abolished.

GQ|Littler said tribunals did not have the resources to deal with the growing number of claims since fees were abolished, due to falling staff numbers – including both judges and administrative staff.  

The coalition government introduced employment tribunal fees in 2013, which it said would reduce the number of weak or vexatious cases in the court system. But the Supreme Court ruled fees were illegal in 2017, forcing the government to abolish them. 

GQ|Littler found the number of staff employed by HMCTS has fallen 17 per cent from the point fees were introduced in 2013. HMCTS employed 15,990 staff in October 2018, down from 19,200 in July 2013. 

Staff costs have also been cut from £41.2 million to £38.5 million over the same period.

Sophie Vanhegan, partner at GQ|Littler, said tribunals had been effective in working with a tight budget, but they were struggling to deal with the “deluge” of claims since fees were abolished.

“It is not just judges that are important to the smooth running of tribunals. Administrative staff are also essential to keep cases moving through the system,” Vanhegan said. “At present, tribunals do not have the resources to function properly, and it is businesses that are suffering.”

Julian Outen, partner and head of the employment team at Ellisons, told People Management he was not surprised by the reported figures as there was “no doubt there had been an increase in claims since abolishing fees”. He said that when fees were introduced there had been “equally as dramatic a drop in claims” which coincided with austerity measures and budget cuts. 

“Lots of resources were taken away from tribunals because workloads dropped, and you didn’t see recruitment of new judges into the system,” Outen said. A round of recruitment for full-time judges closed last year, with recruitment for new part-time judges opening this year. 

Backlogs can cause problems for businesses and individuals who face uncertainty for months or even years over the outcome of a claim, due in large part to delays in processing claims when they are lodged. 

The employment tribunal National User Group (NUG) previously noted the increasing time between claims being filed, processed and heard at tribunals. During an NUG meeting in December 2018, Michael Reed, principal legal officer for employment for the Free Representation Unit, raised concerns about how far into the future tribunal cases were being listed, noting that cases in Croydon were being pushed into 2020.

Outen and Samantha Clark, senior associate at Irwin Mitchell, highlighted London Central and London South tribunals as being hardest hit both by number of claims and long wait times. Outen added some rural centres had delays because their administrative functions were outsourced to a regional hub. 

The delays may also become a relevant factor for both employers and employees alike in whether to fight or settle claims. Clark said there was a considerable incentive to look at settling cases outside the tribunal system. 

“You have to consider that you could be waiting for another year, so there’s a big push to put money in the direction of settling now,” Clark said. 

“Acas conciliatory offices will still help you, but I think they are less likely to be proactive and more likely to be reactive to cases now,” Clark said. “They can’t help as many claims, which might mean fewer cases are settled so those go to tribunal, and it’s a self-perpetuating system.”

A Ministry of Justice spokesperson said the steps taken to remove employment tribunal fees has led to an increase in cases being brought to tribunals. 

The spokesperson added: “Additional sitting days have been allocated to cope with the increase, and a judicial recruitment campaign is also underway. We continue to carefully monitor the volume of cases in our tribunals, and will not hesitate to take urgent action if needed.”

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