Unpublished government research obtained by the Gazette has called for opt-out class actions to be piloted in employment tribunals, so as to deal with the thousands of discrimination and equal pay cases clogging up the system.

The report by Lexicon Ltd, whose publication has been delayed by the Government Equalities Office (GEO) for several months, warns that if no steps are taken and the backlog of cases continues to grow, ‘the public will begin to lose confidence in the tribunal’s ability to provide timely redress for those who have suffered discrimination in employment’.

The majority of new tribunal cases involve a group bringing the same or a very similar claim against the same employer, mainly local authorities and the NHS, the research said. While opinions on the desirability of a new mechanism to deal with them are divided, ‘what is undeniable is that the current situation is untenable’, researchers concluded.

‘Existing mechanisms are disposing annually of less than 10,000 of the 113,000 pending equal pay cases,’ they said. ‘At the same time, the number of new cases continues to grow dramatically.’ The current test case mechanism was not working, they added.

The report recommended piloting the approach on equal pay cases. The pilot could feature elements such as class certification by the tribunal, pre-approval of appropriate bodies to act as class representatives and fairness hearings to approve settlements. There was no consensus on whether ‘no win, no fee’ lawyers should be able to act as the representative.

Leading employment lawyer Kerry Underwood of Hertfordshire firm Underwoods said collective actions ‘are probably more necessary here than in any other type of forum given the common issues affecting large numbers of workers, especially in the public sector’.

However, Newcastle solicitor Stefan Cross, who has pioneered taking mass equal pay claims on a contingency fee basis, said that while it was a nice idea in theory, it would be ‘terrible’ in practice, because it could result in ‘less money being distributed to more people by trade unions accepting settlements not based on individuals’ losses’.

The GEO denied it had delayed publishing the research.