Tribunals and Tribulation

Regardless of a substantial shift in recent years in how and where many of us work, some things do not change.

One is the right to enjoy a working environment free from unjust treatment.

The latest evidence, however, shows that isn't the case for many thousands of individuals.

Furthermore, it reiterates the concerns of senior judges about the challenges facing those who take issue with the conduct of their bosses or colleagues and the very tribunal system upon which complainants depend.

Data published by the Ministry of Justice has revealed a backlog of almost half a million Employment Tribunal cases at the end of September last year (https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2022/tribunal-statistics-quarterly-july-to-september-2022#:~:text=In%20Q2%202022%2F23%2C%20there,compared%20to%20Q2%202021%2F22.)

Forty-five thousand of those were single claims, made by a sole employee and relating to an alleged breach of their employment rights. A further 448,000 outstanding matters were multiple claims - proceedings featuring two or more people arising from the same facts and quite often a common employer.

Whilst Covid undoubtedly impacted on tribunals' ability to deal with claims, the current state is not purely a legacy of the pandemic.

Indeed, even before the MoJ released its figures, Judge Barry Clarke, the President of Employment Tribunals for England and Wales, was warning of severe problems which prevent tribunals operating efficiently h(https://www.judiciary.uk/guidance-and-resources/senior-president-of-tribunals-annual-report-2022-is-published/#:~:text=The%20Senior%20President%20of%20Tribunals,productive%20year%20for%20the%20tribunals.)

He highlighted how the system had been negatively affected by high turnover of staff and long waiting times, both of which were compounded by difficulties in obtaining "reliable, audited data" which might give an accurate overview of the situation.

In addition, Judge Clarke identified that "our physical estate in some regions is too small, too frail, or both" but insisted that video hearings were not the answer just because "they have been an effective solution to the pandemic".

Instead, he reasoned that a solution required "flexibility, adaptability and patience" from judges and staff as well as the "impressive forbearance" on the part of those whose claims needed consideration.

Yet it is entirely possible that the problems which he has described are already being felt by the labour force.

Ever since the withdrawal of Legal Aid for the vast majority of employment tribunals, meeting the cost of a protracted claim has been impossible for some without the backing of a trades union or other benefactor.

It was a scenario highlighted four years ago by the Equality and Human Rights Commission which suggested that a lack of public funding was allowing some certain employers "to get away with discrimination" (https://www.lawgazette.co.uk/practice/legal-aid-system-leaving-employees-to-fight-discrimination-alone/5070654.article).

As I've been telling The Times' Legal Editor, Jonathan Ames, focusing on an Employment Tribunal claim for an extended period of time may not only become a full-time pursuit for individuals but even could have a damaging impact on their mental health (https://www.thetimes.co.uk/article/73a3c75e-9498-4570-a6ba-eb73387c0f6d?shareToken=d446e46ecedb104bf7ed83af08b6bdc5).

There is also a risk that faced with the prospect of delay, strain and a lack of income, some people will choose not to pursue a claim at all and, therefore, not take advantage of their legal rights.

There are consequences for employers too. When an Employment Tribunal case drags on, it can act as a distraction from the responsibilities of running a business. By the time that it is eventually heard, relevant personnel may have left a company or simply be unable to clearly recall material facts.

These are very acute issues which do not look like disappearing any time soon. The most recent figures show that the number of claims received by Employment Tribunals in England and Wales has risen by 42 per cent in the last five years.

Such structural problems will require a lot of effort to rectify and ensure that everyone with a genuine complaint, including those without very deep pockets, do not find their access to justice impeded.