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Farrer & Co | ACAS strikes and Tribunal meltdown

We are all very familiar with the change to the Employment Tribunal fee regime and the effect that this has had on the number of Tribunal claims (hint: there are a LOT more claims – approximately 65% more).

The hidden (or not so hidden) story is the impact that this is having on the ground – on the creaking Tribunal system, on the delays and additional expense to employers and employees of going through a Tribunal claim and even on ACAS helplines.

My own recent experience of Employment Tribunals include the following:

- being called by a Tribunal clerk on the Thursday before the Easter weekend to ask if my client “was still planning to attend” the Preliminary Hearing (PH) listed on the Tuesday after Easter. We were not “still planning to attend” because we had had no notice of this PH. The Tribunal clerk claimed a notice had been posted out (despite all other correspondence being by email) but we never received it and nor did the other side. An urgent application for postponement was made but rejected. Heroic efforts over the Easter weekend by Shehnal Amin in our team and a barrister instructed at the last-minute meant we were prepared in time and got what we wanted from the PH – but it could easily not have gone so well;

  • being called on the day before a PH for which we, our client and Counsel had spent considerable time and effort preparing, to be told by the clerk “I am sure you have heard this before” but the PH wasn’t going ahead due to Judge availability. We have had the PH relisted fairly quickly but, despite our best efforts, this has resulted in additional Counsel’s costs and wasted management time for our client;

  • a judge insisting on finishing evidence a day early as she was given no time in her diary to write up her decision;

  • receiving emails from Tribunals on Saturdays – a clear indication that overtime is needed to clear the backlog;

  • two different employment barristers having a maximum 10 days’ availability between now and 31 December, impacting on continuity of advice from hearing to hearing.

My colleagues Serena Nicholls and Alice Kendle have recently gathered other experiences from our team ranging from cases being listed more than 12 months away to correspondence from Tribunals taking an extraordinary time to be turned around, with Case Management Orders being received after the deadlines set within them.

We aren’t the only ones experiencing these issues at Tribunal. The Employment Lawyers Association (ELA) conducted a survey of its members in February and March asking for the views and experiences of its members. The survey was published to ELA members on 1 May 2018 and revealed that:

  • more than 75% of respondents to the survey are experiencing an increase in the time Tribunals are taking to deal with the service of claims;

  • 90% are experiencing more delays in dealing with interim paper applications and other correspondence;

  • 53% report delays in telephone calls being answered;

  • 57% are experiencing delays in receiving reserved judgments; and

  • 45% report postponements of a hearing due to a lack of judicial resources.

Issues at the Employment Tribunal stage is not the whole picture. You may have seen the news that staff at ACAS who deal with potential Employment Tribunal disputes went on strike in May. This followed industrial action related to an increased workload. This made me think outside the Tribunal system box – every stage of the litigation process seems to be affected. And further ACAS strikes are planned this week.

I wish I had a magic wand to increase the number of judges, Tribunal clerks and ACAS conciliators (and also, frankly, to improve the Employment Tribunal buildings and facilities) as I suspect that, in the short term, increased funding is the only thing that will make a difference. In the longer term, many ideas have been suggested from re-introducing fees to using video conferencing to using artificial intelligence instead of judges. 

Access to justice is an important principle but, as the maxim goes, justice delayed is justice denied.

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