In the last issue of HR Matters, I wrote about the Supreme Court’s landmark decision in R (UNISON) v Lord Chancellor [2017] UKSC 51 in which the imposition of fees in employment tribunals was ruled unlawful.

I raised the concern that the tribunal system was not adequately prepared for the increase in workload which would inevitably stem from this decision. The caseload in tribunals had previously been in decline and so were the number of judges and administrative staff employed to deal with it.

As predicted, we have seen a sharp increase in the number of cases issued in the employment tribunal. Between October and December 2018, we saw a 23% rise in the number of single employment tribunal claims, representing the highest level of claims in the same period since 2012. While this increase can be seen as vindication for the Supreme Court in providing wider access to justice, from a practical perspective there has also been an impact on the backlog at the courts, with a 20% rise in the number of cases outstanding in the employment tribunal. The corresponding impact on parties is that the average time to deal with a claim has reached 30 weeks; four weeks longer than the same period in 2017. In my own experience, both in practice and as a sitting Fee Paid Employment Judge, this average is significantly skewed by the smaller cases. Anything more substantial will take a great deal longer, particularly in London where well over a year to eighteen months is the norm.

There has been a significant recruitment drive by the Judicial Appointments Commission to tackle the increasing backlog. We are starting to see appointment announcements in respect of last year’s recruitment exercise, where over 50 new Salaried Employment Judges were sought. This will still leave a judicial shortfall in the busiest regions (London and the south east). There is a further exercise currently in progress for 50 Fee Paid Employment Judges, but I don’t anticipate any news on their appointment for at least another year.

There have been murmurings in high circles about the possibility of reintroducing fees in a manner which would not see a repeat of the decision in Unison. It is worth remembering that the Supreme Court acknowledged that there was no prohibition on charging fees, so long as they did not prevent access to justice. Nothing concrete has yet been implemented but given the rise in cases, the reintroduction of fees in some form would seem likely unless we see a change in government.