Employment tribunals need resources, not a sticking plaster

Many changes included in regulations laid out last week are improvements, such as making it easier to correct minor paperwork errors, allowing longer for conciliation and permitting multiple claimants and respondents to use the same forms.

But some are more risky, for example allowing non-employment judges to preside over cases which could send non-specialists blundering into a complex field of law, undermining the relatively informal ethos of the tribunals.

The fundamental problem remains that years of underinvestment have left claimants waiting many months for justice.

Cutbacks have weakened the system

Huge cutbacks were made to numbers of tribunal centres, judges and administration staff when the government imposed tribunal fees in 2013 and case numbers collapsed.

Cases have picked up again after TUC affiliate UNISON took a case all the way to the Supreme Court and successfully argued that the fees were unlawful.

But this hasn’t been accompanied by resources.

The government needs to step up investment, particularly in back-office administration and also confirm that there will be no attempt to reintroduce the tribunal fees that cut so many workers out of the system previously.

A huge backlog

The TUC and our affiliated unions believe that, wherever possible, it is preferable to resolve employment disputes at work, using internal workplace procedures.

Unions are experienced in using their collective bargaining influence and the right to accompany individuals in grievance and disciplinary hearings to find early and amicable solutions to disputes in the workplace.

Where it is not possible to reach a settlement, unions will support union members in pursuing merited claims in the courts or tribunals.

Therefore, an independent employment tribunal system which provides an easily accessible, informal, speedy and inexpensive mechanism for resolving workplace disputes is of critical importance.

Unfortunately, that is not what we have. Years of cutbacks have taken their toll.

Backlogs were rising even before the coronavirus pandemic took hold (30,600 single cases were waiting to be heard as of March 2020).

Earlier this month, the Ministry of Justice published data showing that 39,100 single claims and 5,900 multiple claims were now outstanding in the employment tribunal.

There are reports of some cases being listed for dates through 2021 and even into 2022.

This is not good for workers seeking justice on issues ranging from unpaid holiday pay to discrimination and who are more likely to be pressured into accepting low-ball settlements.

But many employers will also face unresolved cases leading to ill feeling and unrest among workers.

Non-specialist judges

The government sees part of the answer in permitting non-specialist judges to preside over employment tribunal cases.

This could lead to some employment judges who were previously despatched to other parts of the legal system returning.

But it comes at a risk.

Employment tribunals and the Employment Appeal Tribunal provide a specialist, swift and comparatively informal forum for the adjudication of employment-related disputes.

Bringing in outside judges could introduce a more formal approach to employment cases and particularly disadvantage unrepresented claimants and respondents.

In addition, employment law is a distinctive and highly complex field, which warrants the use of a specialist judiciary.

Newcomers might take longer to produce judgments and appeals will be more likely, which could gum up the system even more.

Legal officers

The government has also sought to reduce the burden on employment judges by allowing officials they will call legal officers to handle some decisions that are currently the preserve of employment judges.

These include dismissal of a case where it is withdrawn, time extensions and applications for additional information.

Crucially, the government has listened to representations from the likes of the TUC and given claimants and respondents who are unhappy with these decisions the right to appeal to an employment judge.

But, again, this could actually slow the system if decisions by these officers are regarded as flawed and frequently subject to appeal.

Improving the system

There are other changes that should help improve how smoothly the system runs.

These include:

• extending the early conciliation period to six weeks when previously it was a month with the option of an additional two weeks
• refining the early conciliation and employment tribunal rules to allow for the correction of minor errors, such as discrepancies in names
• changing the rules to allow multiple claimants and respondents to use the same forms in many circumstances

But as welcome as some of these changes appear to be, they are no substitute for a properly resourced, accessible tribunal system that allows workers to enforce their rights in a timely manner. Without, of course, the deterrence of tribunal fees.