Kathryn Barnes, Employment Counsel Europe, Globalization Partners

Whistleblowers sacked for raising concerns about employers breaching Covid-19 guidelines are among those being denied justice because of a record backlog of cases at employment tribunals, according to a new analysis of government data.   

It warned outstanding claims were set to exceed half a million by spring next year, amid a "perfect storm" of rising demand and restricted capacity.

The Tribunal trouble report, released yesterday by Citizens Advice, also revealed that, in the first half of this year, nearly three in 10 (29 per cent) unfair dismissal cases were abandoned by employees who faced average waits of more than nine months to get their cases heard.

Kathryn Barnes, Employment Counsel Europe at Globalization Partners, explains how the mounting backlog of tribunals can be mitigated if employers take geared steps to follow the correct procedures - offering advice on how to do so.

Kathryn Barnes, Employment Counsel Europe, Globalization Partners, said:

“This new research shines a worrying light on how the pandemic has created the 'perfect storm' for employment tribunals: raising demand at a time of restricted capacity. Now, more than ever, employers need to be careful not to overlook their legal responsibilities during the redundancy process. By not taking the prescribed route, they risk falling foul of the law.

"In order to effectively guide employers to make decisions about what is fair or unfair procedurally, they should follow the ACAS code of conduct or seek legal advice prior to moving forward. Before any claim can be made, employees need to follow a process of early conciliation with ACAS, which gives both the employee and employer time to negotiate and come to an agreement before an employment tribunal claim is lodged. For the most part, all parties can come together in agreement about how the matter can be brought to a close negating the need to rely on a costly and upsetting tribunal process.

"Employers should also make certain they are open and honest about the position of the business throughout the entire redundancy process: breaking down any difficult barriers and ensuring employees feel as if they are valued and heard. The second an employee has an "at risk" letter confirming they are potentially going to be made redundant, a whole world of emotions erupt in that individual - from upset, to anger, and disappointment. If a manager or c-suite leader is not handling the situation  compassionately, then an employee is more likely to fight the dismissal. The more understanding an employer is, the easier the route will be through the process.

"Ultimately, being properly informed, open and compassionate will ensure the redundancy process is carried out in the best way possible, without any major repercussions (provided the correct process as noted in the ACAS code of conduct is followed). The mounting backlog of tribunals can be mitigated if employers take geared steps to follow the correct procedures, helping to make the situation easier for all.”

Government to boost capacity in employment tribunal system, giving quicker outcomes for employees and employers

On 17th Sept Business Minister Paul Scully (@scullyp) introduces raft of technical changes to increase flexibility to employment tribunal system.

  • New reforms to help employment tribunal system hear more cases and open up court space – ensuring a speedier resolution of cases for businesses and employees
  • enables deployment of a greater range of judicial expertise including non-employment judges into tribunals
  • rules will be amended to allow greater use of virtual hearings

A raft of changes to boost hearing capacity in employment tribunals has been introduced into Parliament by Business Minister Paul Scully today (Thursday 17 September). The reforms will give the system more flexibility in light of the global COVID-19 (coronavirus) pandemic. They will also allow tribunals to deal with increasing caseloads, following the abolition of employment tribunal fees in July 2017.

The government is changing employment tribunal rules to allow more flexibility for remote hearings and reduce the burden on courts, claimants and defendants. These changes will help tribunals hear more cases and make courts space available for other urgent cases, an important step in addressing the impacts of COVID-19.

The reforms will assist tribunals in ensuring the speedier delivery of justice for businesses and workers.

Business Minister Paul Scully said:

"The employment tribunal system has held up very well in the face of an increased caseload and the impacts of COVID-19 – but these changes will boost its capacity further.

"These reforms will provide further flexibility to the system to ensure workers and businesses receive quick and fair resolutions to disputes, both at this critical time and in the future too."

Courts Minister, Chris Philp, said:

"These changes will provide speedier resolutions for businesses and employees alike, and are the latest step in our plan, backed by £80 million of funding and an additional 1,600 staff, to reduce delays and deliver justice.

"We are pursuing every available option including increasing the use of technology, rolling out further safety measures to ensure our courts recover from the effects of the pandemic as quickly as possible."

One of the changes being made will allow the judiciary the option of deploying non-employment judges into employment tribunals, if certain criteria on suitability are met. This will help the employment tribunal system deal with demand, reducing unnecessary delays.

The government is also changing employment tribunal rules to allow more flexibility over virtual hearings. The change will reduce the need for physical hearings in the future making it easier for claimants and respondents, who, for example, will not need to pay travel costs.

This follows a recent £80 million boost for HM Courts and Tribunal Service to meet the unprecedented challenge presented by the pandemic to:

  • employ 1,600 new staff to support the recovery
  • set up more temporary Nightingale Courts
  • and a further rollout of technology across the estate to hear more cases remotely

This is on top of a major £142 million investment across the courts system announced in July to speed up technological improvements and modernise courtrooms.

Other changes being implemented include:

  • allowing legal officers to carry out administrative tasks currently performed by employment judges
  • refining the early conciliation and employment tribunal rules to allow greater flexibility in handling minor errors
  • changing the rules to allow multiple claimants and respondents to use the same forms where reasonable, to avoid multiple certificates and time limits in what is essentially the same dispute

The measures for the employment tribunal rules, use of legal officers and cross-deployment of judges will come into force on 8 October. The measures on early conciliation will come into force 1 December.

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