A survey of UK employment lawyers has revealed a creaking and underfunded tribunal system functioning at a snail’s pace and threatening access to justice for both workers and employers.
The survey of 700 respondents reveals that over 40% of employment lawyers are waiting more than a year for their clients’ cases to come to a 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.
More than 90% of lawyers have final hearings listed at least six months into the future, with many reporting their cases are being listed even further into the future.
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 lawyers as scoring particularly poorly in these respects.
The respondents to ELA’s survey blamed chronic understaffing, unavailability of resources, and an increase in the volume of work for tribunals as the root causes of tribunal delays and inefficiencies.
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.”
In light of the findings, the Employment Lawyers Association (ELA), which commissioned the survey, has called on the Ministry of Justice to urgently invest in more staff and judges to save the tribunals from breaking point.
Commenting on the survey results, Caspar Glyn QC, chair of the ELA’s legislation and policy committee, said the pandemic was 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,” he said.
“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,” he added.
Remote hearing success story
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.
Survey respondents saw remote hearings as providing improved access to justice. “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,” one respondent said.
Shortcomings of remote hearings have also been identified, however, with 60% of lawyers flagged issues with client contact during hearings as a problem and 45% worried about the impact remote hearings can have on witness evidence.
One employment lawyer described having to communicate with their client via WhatsApp throughout the hearing, identifying that having a proper chat function in the software would be less distracting.
Welcoming the findings regarding the use of remote hearings Jennifer Sole, ELA legislation and policy committee member, 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, the ELA has suggested three clear ways to better leverage the Cloud Video Platform (CVP).
“The first is to make high-quality explanation of the process by the sitting judge a routine element,” said Sole. “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.
“Finally, implement better chat functions, screen sharing, and document transmission functionality on the CVP. This would make the system even more effective.”