Employment tribunal backlog now at 10-year high

30 December 2020

A surge in unemployment in the wake of COVID-19 has resulted in the highest level of single employment tribunal claims since 2013/14.

The sharp rise in new claims has exacerbated the existing backlog of cases in the employment tribunals, with a 22% increase in outstanding caseload and the average age at disposal now 39 weeks – an increase of five weeks compared to 2019. The number of claims disposed of is 39% down on the same period last year. The backlog is expected to increase as the government has allocated only 4% of its courts recovery money to employment tribunals, despite the increasing caseload and the expectation of even more cases in the coming months.

The increase in claims is most likely driven by the increase in unemployment resulting from the COVID-19 pandemic, which has put an increasing pressure on a tribunal system facing severe operational difficulties as a result of the national lockdown earlier this year and subsequent social distancing guidelines.

Catherine Johnson, Partner in Birketts’ Employment Team, said: “As the tribunal backlog continues to grow we are hearing reports of some longer hearings not being scheduled until 2022 in some parts of the country. Our lawyers are extensively experienced in advising both employers and employees in these cases, which will be all the more important as both try to navigate the fluid and rapidly-changing landscape of support available for those affected by coronavirus.

The cost of defending these is dependent on several factors, including the complexity of any legal issues involved, the volume of evidence, the number of witnesses and the length of a hearing – all of which could be exacerbated during COVID-19, making forward planning and future-proofing increasingly difficult, undoubtedly leading to further cases to be heard at employment tribunals. We encourage anyone involved in a claim to be heard at tribunal to see clear legal advice as soon as possible.”

The government says it has provided extra capacity to hear cases through Nightingale courts, with extra investment in audio and video technology allowing for more remote hearings to be conducted. However, of the 10 Nightingale courts announced, the closest to the East of England are those at Hertfordshire Development Centre (Stevenage) and Knights’ Chamber and Visitor Centre (Peterborough), although two more are also open in London.

Abbie Head, Paralegal in Birketts Employment Team, said: “Our lawyers are already dealing with remote hearings as effectively as possible for our clients. With new rules published to facilitate successful remote hearings, we are prepared to guide employees and employers through the adapted process. We have ensured that parties are prepared to participate and witnesses are prepared to effectively deliver their evidence remotely. This is an important time to be ahead of the game and each of our lawyers are experienced to support its clients through the new system with ease.”

On 1 December 2020, the ACAS early conciliation period was extended to six weeks (previously one month with the option to extend by 14 days). This allows more time for parties to reach an amicable settlement, instead of fighting their way through the tribunal backlog, where appropriate. The impact of the extension is not yet known, but it is hoped a decrease in the tribunal’s backlog will be seen in the near future.