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Well publicised reports of mounting delays in the employment tribunal system have been a cause of great concern to businesses and their employees over the last few months. No party wants to have to go through a tribunal process, but when that experience is protracted and subject to long delays the stress, and costs, increase.

Reports of an outstanding caseload of up to 430,000 by the end of last December are likely to cause alarm, particularly when commentators state that the backlog is the biggest on record, but what’s the truth behind the numbers? And, how severe is the impact likely to be on our own customers?

According to Donna Seferta, Partner at our panel solicitor, Irwin Mitchell, though the figures are concerning, caution must be exercised when comparing statistics on backlogs and delays to pre-2021 figures: “It’s challenging dealing with the employment tribunal statistics as the full data has not been released. When the Tribunal migrated to their new case management system, the data was difficult to produce, so from early 2021 we have a period of time where there simply isn’t any.”

Though we might not yet have all the data, it’s evident that delays are pronounced, and that they have been ongoing for some time; “The Employment Tribunal blames these on the pandemic as well as the abolition of Tribunal fees. When fees were introduced, claims reduced dramatically as did the number in the Tribunal judiciary. However, when fees were abolished in 2017, the Tribunal was on the back foot as claims increased much more quickly than judges could be recruited. The pandemic only compounded the issue.”

A long wait for justice

The main impact these delays have on claimants is the length of time they must wait for their claim to be heard, not only prolonging the stress of the situation, but also increasing the costs as the proceedings drag on.

Prior to 2019, we were seeing waiting times of around 28-32 weeks for a claim to be heard, and though data is not yet available for the 2022/23 period, we saw this average wait time increase to 49 weeks as of March 2021.  Donna added: “We aren’t seeing a longer delay in 2022/2023 than was seen in 2021, however, there is no current 2022/2023 data and delays vary by regional Tribunal.”

We understand businesses and employees might be concerned that these extensive delays could jeopardise the success of their claims. This is a fair concern, it undoubtedly has an impact; as time goes by memories fade and witnesses move on; however, as Donna points out, whether the delays put a claim in jeopardy is up for debate. She noted: “I can’t agree it jeopardises Employment Tribunal claims. The civil courts have a limitation period of six years for contract claims, with cases taking years after that to go to final hearing and they can be heard justly. There’s no reason to believe that Employment Tribunal cases would be jeopardised on this basis.”

Light on the horizon?

There is good news, however. The Employment Tribunals have been given a £2.85m funding boost and an extension to the number of days they operate to help tackle the backlog. This forms part of a wider £5m investment by the Government designed to speed up tribunal hearings. Other measures of support will include a new cohort of Employment judges and a further recruitment drive, as well as the reformation of the Tribunals’ administrative function, with Legal Officers given the power to deal with some of the administration backlog. We’re also seeing positive impact from the use of ‘virtual’ courts. However, it will take some time before the current backlog can be reduced.

What are we doing?

At Arc Legal, we prefer to explore several methods of alternative resolution rather than push our policyholders to go to court. Our Legal Assistance Portal (LAP) provides a wealth of information and guidance to customers who want to find ways to avoid protracted legal disputes, from legal document templates to articles covering some of the most common legal queries we encounter, to an online chat facility.

Our Legal Assistance Helpline (LAH) is staffed by a team of qualified experts, 24/7, who are on-hand to talk to customers about their legal issues and help them to find a resolution that suits them, rather than a strict ‘straight to court’ process.

This is an approach mirrored by our panel solicitors. “We focus on resolution outside of a final hearing, which means that for many of the customers we deal with, these delays and backlogs do not have the negative impact they could. This is based on proportionality as well as the impact on an individual and a business to have a legal claim ‘hanging over’ them. We always ensure customers consider alternative resolution at an early stage.”

For now, we can’t see these delays improving drastically, but for Arc Legal customers, the impact should be minimal. Along with our panel solicitors, we will do as much as we can to help them avoid a lengthy court process, supporting them to explore other options and giving them expert guidance throughout the process.

Rebecca Conway, Chief Legal Officer, Arc Legal Group

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