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8 Month wait to have Employment Tribunal claims heard

Employment Tribunals can be a daunting experience for all involved; however it is commonly thought that they provide a quicker and more efficient process than the Civil Courts; however this may not be the case.

A recent report produced by London-based employment lawyers GQ Littler found that claimants are currently having to wait on average eight months from lodging an Employment Tribunal claim to it progressing to a final hearing.

The report suggests that for the past four years, there has been a year-on-year increase in the time taken to get a claim to Tribunal, leading to frustration and uncertainty for employers and employees alike.

The GQ Littler report is critical of the wait times and suggests that in the period between a claim being lodged and the hearing taking place key witnesses may leave employment and recall of certain incidents can fade.

Whilst this is true, it must be borne in mind that many civil court cases (be they Personal Injury, neighbour disputes, debt cases) they take years to progress to a final hearing, and there is no real concern that witnesses recall would not be at its best, as delay is expected in the court system.

It must also be highlighted that Employment Tribunals are becoming increasingly complex, with many cases involving matters such as whistleblowing, discrimination and harassment; these types of claims inevitable require Preliminary Hearings (which can require separate expert reports, legal preparation and submissions) and it is becoming more common for Employment Tribunals to require expert evidence.  In Scotland the Tribunal system generally requires oral evidence to be given meaning that even simple matters can run for several days, adding to the Tribunal’s backlog (in England, however, it is the norm that evidence in chief is given by written witness statement although that does not seem to resolve the backlog issues there).

The report suggests that some whistleblowing cases are taking between 18 and 36 months to be heard. This is well outside the Tribunals’ goal of dispensing with claims as swiftly and efficiently as possible but it is apparent that many whistleblowing cases, where an employee can be accusing an employer of some breach of law or illegal activity, if successful could have a huge impact on a business as the financial awards to a successful claimant can be large, not to forget the reputational damage an adverse public judgment could have.

In addition, it is now the norm for parties to an Employment Tribunal to instruct legal representation. At their inception, Employment Tribunals, known then as ‘Industrial Tribunals’ were designed for employees to take matters forward themselves however it is becoming increasingly rare for ‘party litigants’ to take cases forward. The increase in legal representation has led to more delays as legal agents seek to use the Tribunal Rules and processes to maximise the benefit to their clients.

Further explanation for delays can be found when looking at the increase in claims since the abolition of Employment Tribunal fees in 2017, with the UK Tribunals Service now dealing with over 35,000 claims per year, these include many thousands of claims that were raised when fees were in place but could not be progressed due to lack of funds to pay fees, and many of these claimants availed themselves of the Tribunal giving them an opportunity to re-constitute their case after fees were removed.

These factors, allied to Government funding cuts, which saw some smaller Tribunal venues close, and larger ones, such as the Glasgow Employment Tribunal, be scaled back both in terms of space and staffing has led to substantial administrative delays, in dealing with email correspondence, letters and indeed many Tribunal users have complained of waiting for several hours on the telephone to get through to the Employment Tribunals enquiry helpline.

All of these matters lead to the Employment Tribunals system drifting away from their initial purpose of being an ‘Industrial Tribunal’ that allowed employee’s quick and inexpensive access to justice. Regular meetings of the Employment Tribunal users group take place throughout the UK and this is an issue that the Tribunal system are aware of and are trying to address.

Contact The Mckinstry Company

At The McKinstry Company we strive to take a proactive approach to matters and wherever possible progress claims so that they don’t get stuck in the Tribunal maze. If you are an employer or an employee facing an Employment Tribunal, The McKinstry Company would be delighted to assist you to navigate the Tribunal process as swiftly and efficiently as possible. Please contact us on 01292 281 711 or complete our online enquiry form.

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