Employment tribunals suffer severe delays post-Covid

Employment tribunal cases in England and Wales have been pushed back as far as mid 2024 as the system struggles to cope with increased waiting times after the pandemic and a decade of underfunding, data show.

The impact of the Covid crisis, which caused hearings to be delayed and led to a shortage of judges, has left a lasting legacy on the tribunal system.

The number of open caseloads rose from 46,467 to 50,060 in the year to October 2022, according to HM Courts & Tribunals Service figures published this month.

Judge Barry Clarke, president of the employment tribunal in England and Wales, said that the 2021-22 financial year had been “a period of immense challenge”. He added that the system was suffering the “significant problem of excessive waiting times, especially in London and the south-east of England”. 

Clarke said that there were “too few judges” and “a high turnover of office staff”, in his comments in the senior president of tribunals’ 2022 annual report. Office buildings in some regions were “too small, too frail, or both”, he noted.

The delays have prompted the government to inject £2.85mn into the employment tribunal system in an effort to ease the backlog, and allow up to 1,700 more cases to be heard before the end of March 2023.

However, lawyers have questioned whether more investment is needed and stressed that long waiting times could push workers to settle their cases rather than fight on.

Raoul Parekh, partner at law firm GQ Littler, said: “Delays can mean that [people] may be under pressure to ‘undersettle’ a case if they are offered a smaller sum of money now against the chance of a potentially larger amount of money in the distant future.”

Parekh added that the backlog was also a problem for employers as, by the time a claim is heard, staff at the company involved may have moved on. “The current delays mean that a case about what someone said or did not say in 2020 might only be heard in 2024.”

Rebecca Sulley, legal director at law firm Pinsent Masons, said it was “very difficult” for employers to defend cases dating back two or three years where witness recollection is limited.

Paul McFarlane, chair of the Employment Lawyers Association, which represents 6,000 advocates, said there had been a “considerable problem” with under-investment in tribunals for some years even before the pandemic.

“Delays do not help employers or employees who want to get cases resolved quickly. We need to see more details of the government investment but at the moment it looks like a sticking plaster over a big wound,” he said. “The emotional drain on someone cannot be underestimated.”

The ministry of justice said: “We are investing nearly £3mn to increase the number of days employment tribunals can operate so around 1,700 more cases can be heard over the next three months.”

It added that the government had put money into additional training, remote hearings, and appointed 114 judges last year to ensure that cases move through the system more quickly.