Employment Tribunals: Are they struggling to cope?

Those of us that regularly use the Employment Tribunal system will be well aware of the more frustrating aspects of its service. From spending hours sitting in airless waiting rooms to having hearings postponed on the day even though your witnesses have travelled many miles to attend, there is a sense that the Tribunal service is bursting at the seams.  A recent survey by the Employment Lawyers Association (“ELA”) indicates that the majority of employment practitioners feel the same.

ELA recently surveyed its 5,500 members who practice employment law in Employment Tribunals throughout England, Wales and Scotland to hear their experiences of representing employers and employees in that forum.  The results paint a depressing picture of the current state of the Tribunal service, but there was solid support for ELA’s suggestions for improving the service.

Main areas of concern

The results of the ELA survey coincided with reports from the Tribunal Service itself in July that from April 2009 to March 2010 there had been a huge increase of 56% in the number of claims accepted by Employment Tribunals largely due to the recessionary climate.  31% of ELA’s members who responded indicated they were dissatisfied with performance and 56% said they had experienced a decline in service.  Joanne Owers, Chair of ELA, who also chaired its working party on the Tribunal Service and who is a partner at Fox Williams LLP, said: “The dramatic escalation in claims has put tribunals and the service under considerable pressure and it is understandable that cracks are appearing.”

One area of particular frustration amongst ELA members was the lack of consistency around the country with 83% indicating that they believed Employment Tribunals do not adopt a consistent approach to practice and procedure and 75% saying they considered Employment Judges weren’t being consistent in their judicial approach to handling cases.  A lack of consistency can make the outcome and process of Employment Tribunal litigation difficult to predict to the detriment of the parties involved in what is already a demanding and stressful process. 

Possible improvements

In order to tackle the all too common problems identified as currently in the system including short notice postponements of hearings, cases stopped only part heard due to lack of judicial time and significant delays in arranging procedural hearings needed to organise the case for trial, ELA asked its members for comments on several ideas for streamlining the case management process. ELA’s members “indicated very strong support” for these measures, according to Joanne Owers.

  • Many felt that it would improve the service if the numerous equal pay claims brought by large groups of employees were dealt with by one particular Tribunal office to concentrate expertise there and free up other Tribunals. 
  • There was broad support to move away from the current system of having a panel of three members (the Employment Judge and two “wing members” drawn from each side of industry) in each case towards having an Employment Judge sitting alone to determine certain more straightforward cases (e.g. for holiday pay, unpaid wages and some unfair dismissal claims). 
  • 77% supported the proposal that only certain judges with the requisite experience should hear high value and lengthy discrimination or whistleblowing claims which it was felt would alleviate both case management and consistency concerns.  
  • 60% supported holding main hearings from Monday to Thursday only with Fridays reserved for procedural hearings (e.g. case management discussions). 
  • Out of hours hearings attracted relatively little support as rather surprisingly did the proposal for witnesses not to spend time reading out their entire witness statement (which is usually the practice now and which adds considerably to the length of a hearing but for the Tribunal to take their statements as read).

Employers will be encouraged by the survey’s findings regarding vexatious litigants and dealing with claims which have no prospects of success, with ELA’s members concerned about the inconsistencies of Tribunals when handling unfair dismissal claims where there was a lack of one year’s service (76%) and in the approach to strike out applications (65%). 68% of responding members felt that something needed to be done to deal more effectively with vexatious litigants, and in that respect by more than simply reducing awards in such cases. More effective case management and increasing the claimant’s liability for the employer’s costs were seen as popular solutions.

Employers can only hope that ELA’s high profile survey is further encouragement to the Government authorities to take action and improve the Tribunal service.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.