There is an old legal saying that ‘Justice delayed is justice denied.’ Whichever side you are on in an employment claim, delay in getting to a Tribunal hearing is unwelcome and prolongs the negative effects of distraction and dispute. It is reported that the Covid 19 crisis is causing a significant increase in the employment tribunal backlog, rising by about 1% with each week that passes. This will probably go up much more if the end of the Coronavirus Job Retention Scheme leads to widespread redundancies. Even before Coronavirus, there was a very large backlog of about 30,600 single cases in March 2020, rising to 36,600 by June 2020.
The Government is trying to help reign in the backlog by reducing bureaucracy and increasing the Tribunal’s capacity to hear claims. This includes rule changes to allow more flexibility for remote hearings via the internet. That may prove to be convenient for everyone, saving travelling and waiting about. Non-employment Judges will be allowed to deal with Employment Tribunal cases, provided they are thought suitable, which may help with the shortage of Judges since the drastic cuts a few years ago. Legal administrators will be allowed to do some of the work currently done by Employment Judges, though not deciding on actual claim outcomes, which seems very sensible provided they are well-informed and fair. These changes will come into force on 8 October 2020.
In addition, the ACAS Early Conciliation process and Tribunal rules are being amended to allow greater flexibility in handling minor errors. Where there are multiple employees and employers in respect of much the same facts, they will be able to share the same ACAS Early Conciliation referral forms where reasonable, to avoid multiple certificates and time limits. The length of the ACAS Early Conciliation period, an opportunity to try to settle a matter which a prospective Claimant must undertake before a claim, will go up to six weeks by default instead of one calendar month, and the current possible extension of a further two weeks will no longer apply. These measures will come into force on 1 December 2020.
Are they more likely to settle?
A practical effect of Tribunal delay is perhaps that aggrieved employees will be more willing to accept a ‘bird in the hand’ if a low offer of settlement is made early on. Starting a claim and then waiting for many months is not attractive, especially if their cash flow is tight. On the other hand, lots of time to sit at home, on furlough or unemployed, gives opportunity to browse the internet and research employer failings and potential claims. With the abolition of Tribunal fees, employees have nothing much to lose if they start off an ACAS early conciliation process and, if not settled, proceed to make a Tribunal claim. Due to the Tribunal backlog, that claim will then hang over the employer’s head for a very long time. All the more reason then to take expert advice early on when making employment decisions and then, if challenged via ACAS or a Tribunal claim, you can be more confident that you can give a good account of your actions, supported by good written evidence, in defence of your position.
Justice, even if you have to wait, is better late than never.