The representative body for employment lawyers has proposed a radical blueprint for dealing with a spiralling backlog of cases clogging up the tribunal system.
The Employment Lawyers Association (ELA) today called for compulsory mediation for all claims and splitting the tribunal into three ‘tracks’ based on the value of the dispute.
A low-value track for simple claims under £20,000 would be handled by a legal officer and only involve a judge if required, with no fees or costs.
For claims of up to two years’ earnings, the ELA recommends the tribunal could limit the issues to be tried. The hearing would be limited to five days with strict limits on the volume of evidence. Judges could make an assessment of the chances of success at a compulsory early neutral evaluation, with financial penalties if offers are made and then not beaten.
High-value and complex claims – for example those involving more than two years’ earnings or multiple claimants - would operate like a High Court claim, in accordance with the civil procedure rules, with a judge, full disclosure, witness statements, and evidence. A written judgment would be issued and a measure of costs would be payable as determined by a judge.
Caspar Glyn KC, association chair, said the proposals are research-based and do not require more money to be poured into the system.
He added: ‘ELA’s plan works by giving information to workers and employers so that they can be realistic about their cases, by encouraging meaningful settlement meetings, by giving powers to employment judges so that they can manage cases justly and by giving choices to workers the system will mean that everyone will get access to justice more quickly and effectively.’
ELA research into the employment tribunal shows that the system is already facing enormous delays which are likely to get worse with legislative and technological change.
The number of outstanding cases has nearly doubled in the past five years, from around 32,000 outstanding cases in autumn of 2022 to nearly 60,000 cases at present. It is now common for cases to be listed for full hearings up to five years after the events which gave rise to them. In one case identified in the research, the delay had been so extensive that a key witness had died before a final hearing could take place.
The ELA, which represents 7,300 lawyers in the UK, stressed that the media focus should not just be on the well-reported issues in the criminal courts and High Court but the waiting list in the employment tribunal.
The group estimates that the phased introduction of the Employment Rights Act over the course of the next year could increase the tribunal caseload by up to a third.
Another problem is that tribunals are currently required to hear every issue brought by a claimant and cannot cut the case down at the outset. New claims are becoming more complex and document-heavy, with large cases related to individuals eating up disproportionate resources and discrimination and whistleblowing claims – which are often more complicated and time-consuming – being much more common.
The use of AI, particularly by litigants-in-person, is also creating more document-heavy claims that often include voluminous amounts of irrelevant material.
Sarah Fraser Butlin KC, a co-author of ‘Reimagining Employment Dispute Resolution and Enforcement’, released as part of the ELA research, said: ‘After your family, your job is the most important relationship in your life. When things go wrong, you want a quick, effective resolution. The employment tribunal system was set up to deliver just that. But no more. Cases are now being listed in some areas for 2030. This is not access to justice. Radical reform of employment tribunals is needed urgently. This is what the ELA proposals aim to do.’
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