Following the abolition of Employment Tribunal fees an increase in claims brought within the Employment Tribunal is expected, but do we have enough employment judges to deal with them?
A previous reduction in cases
The background to the Supreme Court's decision in R (on the application of UNISON) v Lord Chancellor is set out in our previous article. In short, the Supreme Court held that the fee system was unlawful and that it should be abolished immediately as, in part, evidence presented by UNISON confirmed that there had been a 66-70% reduction in cases, indicating that access to justice had been prevented.
Since the Supreme Court's decision much of the commentary has focused on how this will lead to a rise in claims and how the previously unlawful fees will be refunded. It is unclear how much consideration has, however, been given to how the Employment Tribunal Service (ETS) will cope with any such rise in claims or what parties can do to prevent delays in dealing with litigation.
An increase in claims
Put simply, the number of claims is now on the rise. The most recent Employment Tribunal quarterly statistics (issued on 14 September 2017) confirm that, for the period between April to June 2017 single claims received rose by 2% and disposals decreased by 6%.
This has resulted in an 11% increase in the ETS' outstanding caseload.
At the most recent meeting of the ETS' National User Group, it was confirmed that the ETS was already stretched in terms of capacity to deal with its existing caseload. Despite a reduction in the number of claims brought to the ETS prior to the Supreme Court's decision, there has been a significant increase in the ETS' outstanding caseload. The ETS disposed of approximately 9,500 cases (including single and multiple claims) between April and June 2017, which was 34% down on the same period in 2016. The president of the National User Group, Employment Judge Brian Doyle, stated that "in nearly every respect, monthly receipts [of claims] outweigh monthly disposals [of claims]" confirming that there may be a continued backlog of claims going forward - especially with the increasing expectation of more claims being brought as a result of the abolition of fees.
Each of the above figures, as you will note, also relate to the period prior to the Supreme Court's decision, and therefore the figures are only expected to rise in the next round of statistics.
Lack of available judges
The main reason for the existing backlog is the lack of employment judges available to hear the cases that get all the way to a final hearing. There are approximately 110 employment judges in England and Wales, but the ETS continues to lose its judicial resource through the retirement of employment judges without replacement. Approximately five to six employment judges retire each year and the last appointment of an employment judge was back in 2015. Up until now, and due to the previous reduction in cases being brought, throughout the period where the Employment Tribunal fee system was in place there were no recruitment plans to replace retiring, or resigning, employment judges.
The result of this is that there has been a dramatic reduction in the number of "sitting days" where employment judges can hear cases, leading to a backlog and delays. It is not uncommon that hearings are postponed at short notice as a result of employment judges being unavailable, and such delays simply lead to additional costs being incurred by all of the parties involved.
It has therefore been proposed that additional judges will be appointed as salaried first-tier tribunal judges that can be released to sit in the Employment Tribunal. This proposal is, however, limited to such judges only sitting in the Employment Tribunal for just 30 days per year. Whether this is sufficient to deal with the expected increases in claims, and the existing outstanding caseload of the ETS, seems unlikely. In addition, whether such judges will be sufficiently trained to deal with what are often technically complex employment law claims remains to be the same.
What does this mean in practice?
Given the lack of employment judges available, and the resultant delays in dealing with cases, both the ETS and the individual parties will need to consider alternative methods of dealing with litigation, including the use of:
- ACAS Early Conciliation prior to claims being issued;
- ACAS Conciliation following the closure of ACAS Early Conciliation and following the issuing of claims;
- Judicial Assessment, which is an optional, free, confidential and impartial service offered by the Employment Tribunals to assess the strengths, weaknesses and risks of the parties' respective claims, allegations and contentions on liability and remedy and will involve the Judge giving a provisional assessment of the case ;
- Judicial Mediation, which is a scheme offered in specific cases (often involving discrimination) that allows parties to seek a resolution, on a confidential basis, without the need for a formal hearing and with the aim of reducing the number of complex and protracted claims reaching a full hearing.
Each case does, however, need to be dealt with properly depending upon its facts, including amongst any other factors, the merits of the case and the parties' approach to litigation. Parties should be prepared for a lengthy process.