The Tribunal system is functioning at a snail’s pace and threatening access to justice for both workers and employers, according to a new survey from the Employment Lawyers Association (ELA).

As a result, the ELA is calling on the Ministry of Justice to urgently invest in more staff and judges to save the Tribunals, which have been brought to their knees due to the pandemic and after years of under-resourcing, and to allow them to serve their purpose.

Over 700 responses to the survey were obtained, representing the voice of about 25% of ELA’s membership of 6,000 employment lawyers.

The survey reveals that:

• More than 40% of lawyers are waiting more than a year for their clients’ cases to come to Tribunal.
• Involvement in cases with significantly delayed Final Hearings is a common experience for almost all lawyers. Of cases reported with significantly delayed Final Hearings, over 80% are in respect of events that happened at least six months ago; over 90% of lawyers have Final Hearings being listed at least six months into the future, and in fact, many have reported that cases are being listed even further into the future than this.
• Almost all respondents reported that, when compared with March 2020, Tribunals are now taking longer to handle all tasks including answering the phone, dealing with urgent applications and making orders and judgments. Tribunals in London were identified by members as scoring particularly poorly in these respects.

The respondents to ELA’s survey gave a very clear picture of the root causes of these delays and inefficiencies – chronic understaffing, unavailability of resources and an increase in the volume of work for Tribunals. One respondent described the system as "scandalously under-resourced. They just seem to be drowning." Another said, “It is virtually impossible to get through to the Tribunals by telephone, which is sometimes necessary for urgent matters.”

Commenting on the survey results, Caspar Glyn QC, Chair of the ELA Legislation and Policy Committee which commissioned the survey, said:

“In this situation it would seem the pandemic has been the straw that broke the camel’s back. An already stretched system has been pushed to absolute breaking point. The evidence shows that the failure by the Ministry of Justice to invest resources in, recruit and train staff to the Employment Tribunals threatens the effectiveness of timely employment justice in Great Britain.

“We know how hard the court staff and judges are working, and we also recognise that the new electronic case management system has helped to an extent, but put simply, there are too few staff who have too much to do and too little time to deal with Tribunal users and their applications. There are too few judges so that hearings are being held more than a year after a claim has been issued. The Ministry of Justice must act now to fund the Tribunals so employers and workers can resolve their disputes in a timely way.”

Remote hearings – a success story
However, a positive note from the past year has been the speed with which lawyers and the Tribunals adapted to remote hearings. Of those surveyed, almost all see remote hearings as at least somewhat effective; more than half perceive them as very effective and over 80% are more likely to consider them fair compared to March 2020.

The employment lawyers who responded to the survey saw remote hearings as providing improved access to justice. Said one respondent:

“Virtual hearings are a positive development as they increase the number of cases that can be heard in each Tribunal (without the constraints of rooms, etc. being available) and have prevented a huge slowdown of cases being heard in the Tribunals during the pandemic."

Shortcomings of remote hearings have also been identified. Sixty percent of respondents flagged issues with client contact during hearings as a problem – one employment lawyer pointed to having to communicate with their client on WhatsApp throughout the hearing, for instance, and identified that having a proper chat function in the software would be less distracting. Forty-five percent are worried about the impact that remote hearings can have on witness evidence.

Welcoming the findings regarding the use of remote hearings, Jennifer Sole, L&P Committee member from ELA, said:

“Employment Tribunals have led the way in pioneering video hearings. They have been a great success in hearings and trials of fewer than three days. We believe they are here to stay. However, there are three clear ways to leverage the Cloud Video Platform (CVP) used for these hearings for even greater success. The first is to make high-quality explanation of the process by the sitting Judge a routine element. The second is to remain conscious of the connectivity issues, difficulties with cross-examination, and the lack of communication channels to clients and advocates, which are the biggest issues impacting remote hearing effectiveness; and finally, implement better chat functions, screen sharing, and document transmission functionality on the CVP. This would make the system even more effective.”