The furore follows two articles written by the paper’s investigations editor, Dominic Kennedy, and published on 1 February 2020, which claimed to show a tribunal system hamstrung by a backlog of cases that were being adjudicated on by “trade union and town hall lawyers”, rather than experienced, impartial judges.
In ‘Tribunal system chaos: No experience necessary to be a judge in hearings free-for-all’, Kennedy wrote that “[i]nexperienced judges who have never heard a case have been hired to clear an avalanche of employment claims from sacked and aggrieved workers” and that “the tribunal system is in chaos with a record backlog of 40,000 cases”. This, the investigation found, means the average time taken to conclude a case stands at 39 weeks.
The article accused tribunal judges of “making a power grab” to hear all cases brought under equality law rather than just workplace disputes. If approved, the paper said, the proposal from the Council of Employment Judges could result in “a surge in complaints of discrimination against shops, landlords, hospitals, schools, and universities” by claimants who would not have to pay costs if they lost.
In addition, the article asserted that the abolishment of tribunal fees by the UK Supreme Court in 2017 had led to a “free-for-all” of claims “almost entirely fuelled by unrepresented claimants”.
The investigation also took aim at the Judicial Appointments Commission for lowering the bar on recruitment standards following its hiring of 59 new judges – increasing the tribunal’s annual salary bill by almost £6m – claiming some of the “fast-tracked” intake had no previous judicial experience.
In his second article, ‘Poet and novelist amongst judges fast-tracked to the bench’, Kennedy was accused by some lawyers of “denigrating” the appointments of several new judges including Natasha Joffe, a barrister who co-wrote parenting book The Mumsnet Rules, and Joanne Sefton, a barrister and author of several crime thrillers.
Where appointments are made without pre-judicial experience, candidates will have met the selection criteria with material equal to that of their judicial colleagues
Jason Braier, at 42 Bedford Row, described the investigation as “unwarranted, ill-conceived” and a “hatchet job”, while Littleton Chambers’ Jamie Susskind called it “a truly bizarre bit of reporting”.
11KBW’s Sean Jones QC referred to the investigation as “shameful” and described Natasha Joffe as “a tremendous advocate” and “fiercely intelligent”. “She will also, of course, have attended the excellent training courses given to new judges. The [Employment Tribunal] is better for her appointment,” he added.
A spokesperson for the Judicial Office said: “Where appointments are made without pre-judicial experience, candidates will have met the selection criteria with material equal to that of their judicial colleagues.
“Regardless of previous background all judges receive extensive, high-quality training incorporating local orientation and induction training as well as a two-day cross-jurisdictional course for all new judges. In addition, all judges complete an annual mandatory two-day course.”
In a letter to the paper’s editor, Marian Bloodworth (chair, Employment Lawyers Association), Sarah Fraser Butlin (chair, Industrial Law Society), and Diya Sen Gupta QC (chair, Employment Law Bar Association) said they were “very disappointed” by the investigation and did not accept the “accuracy and factual basis of some of the assertions made” in Kennedy’s reporting, adding it amounted to an “unwarranted” and “discriminatory attack” on newly appointed judges that was “entirely without justification”.
Writing on behalf of their members, who represent both employees and employers, the three chairs reminded The Times that “access to justice is a fundamental right” and that it is “essential to our society that workers are able to enforce their employment rights”.
They continued: “[T]he employment tribunal system has been grossly under-funded for some time and requires significant government investment in order to fairly dispense justice to employees and employers. This has become even more apparent during the pandemic. A promised modernised electronic case management system is long overdue. Crucially, the employment tribunal system requires increased administrative and judicial resource i.e. more staff and more judges.”