How could access to justice be improved in the Employment Tribunals?
The Employment Tribunals have an enormous backlog which, as a result, has led to limitations for claimants to receive appropriate access to justice. The latest data available, from January 2022, shows that the average time from an Employment Tribunal receiving a claim to the first hearing is now 335 days (i.e. 48 weeks). Some claimants – especially those with complicated claims requiring longer hearings – are having to wait much longer before their case comes to a hearing, in many cases well over a year. Notably, this statistic only relates to first hearings which will, in most cases, be a Preliminary Hearing to discuss any early issues and set a timetable for preparatory steps towards an eventual Final Hearing to decide the case. There is nothing to suggest this delay will get any better in the short to medium term.
When important evidence such as the memory of witnesses is important to conduct a fair hearing, to what extent is access to justice still available through the Employment Tribunal system? Is there anything that can be done? We offer some suggestions below.
US-style depositions
One possibility in the specific case of witness evidence could be the use of US-style depositions, where witness testimony is taken and video recorded prior to the trial date. This would go some way to avoid witnesses forgetting (or claiming to forget) important evidence at an Employment Tribunal hearing months or years after the events the claims are based on.
With proper rules and protections in place, this could also speed up the number of hearings that Employment Tribunals are able to get through, as it would move cross-examination outside of the tribunal’s time allocated for hearings. Each party could ensure that they limit the sections of the witness evidence that the tribunal is asked to review only to those parts that are relevant to the claims or disputed points. There would likely still be a need for some witnesses to attend a hearing for the tribunal to ask its own questions.
Early depositions would also give parties a better idea of the strength of the case and could help persuade parties with poor deposition evidence to settle early.
Part 36 offers and tools to persuade parties to mediate
Under the Employment Tribunal rules, parties are encouraged to settle claims, either through Acas, or judicial or private mediation. It is normally in the interests of all parties to reach an agreed settlement to avoid the time, expense, and emotional toll taken by litigation. In almost all situations claimants must already have a certificate from Acas to show that the parties have gone through the Acas Early Conciliation process in order to submit a claim at the Employment Tribunal.
It can sometimes be tricky to engage an opposing party in mediation if they want to present as though they are certain of success at a hearing. Both parties must be interested in Judicial Mediation for it to be possible.
If the Employment Tribunal wanted to further encourage mediation and ultimately bring a better access to justice for all involved, it could perhaps bring in a similar scheme to that used in the civil courts under Part 36 of the Civil Procedure Rules. The civil court rules are more complicated than the Employment Tribunal rules, which are designed to be straightforward enough for litigants in person (claimants who represent themselves) to deal with.
Essentially, the courts penalise a party if they reject an offer of settlement and then the party that made the offer is successful in the proceedings. The tribunal could develop a simplified version of this scheme to encourage early settlement. Imposing penalties for rejecting settlement offers would be a departure from the costs rules in the Employment Tribunals, which are very different to those in the civil courts. The Employment Tribunals are a ‘cost neutral’ jurisdiction, which means that each party bears their own costs. Employment Tribunals only award costs in specific and limited circumstances, whereas in the civil courts the ‘winner’ normally recovers at least some of their costs from the ‘loser’.
Private arbitration or mediation
Considering the length of time it takes for matters to reach a hearing, in cases where the parties are unable to settle and the dispute is intractable, parties could hypothetically consider a private arbitration or private mediation as alternative dispute resolution methods. As with commercial and other disputes, a barrister or judge could be privately appointed by the parties to decide the case entirely outside the Employment Tribunal system. The parties would have to agree to be bound by the decision and that the claims would be withdrawn from the tribunal as part of a settlement deal. This would essentially be ‘privatising justice’ and would not afford either party an appeal to a higher court.
The main complicating factor would be costs as arbitration and mediation are both potentially very costly. For a claimant, bearing any of this cost (on top of lawyers’ fees) might be prohibitive. There will be additional considerations if the claimant is insurance funded. However, it might provide an alternative route to justice where the parties are willing and able to fund it.
Greater centralisation
The experience of correspondence with Employment Tribunals can vary significantly. Some are good at communicating, whereas others are almost entirely uncontactable, at least by telephone. Creating a central system where staff at all tribunals have access to all case files, as well as a single telephone number, would mean that parties might be able to speak to tribunal staff more easily. Centralisation has already occurred to some extent, for example there is one online portal for submitting claims, which are then processed at a central office.
There has been some experimentation with centralising hearings, particularly Preliminary Hearings. In March 2021 the Presidents of the Employment Tribunals announced a ’virtual region’ to work alongside the regional tribunals, which would hear proceedings ongoing in any of the regions. There will always be a need for in person hearings, but this scheme shows that the use of remote working technology could improve efficiency in the system.
Additional funding
The solution that would have the greatest effect on reducing the backlog would undoubtedly be additional funding for the court and tribunal system. Many Employment Tribunals would benefit from additional funds for building maintenance. Additional judges and support staff could also be hired to increase the ratio between cases and personnel. Greater efficiencies through the use of software and digital systems will likely go some way to making the process smoother for all parties, but without more staff the backlog appears unlikely to diminish.
A fees system was introduced between 2013 and 2017, which asked claimants to pay a fee to lodge a claim and another fee before their final hearing could go ahead. However, in 2017 the Supreme Court ruled that the scheme was unlawful as it was contrary to the principle of access to justice, and the fees were scrapped. Without an express Act of Parliament, new funding will have to come through the Exchequer.
Conclusion
While there is definitely room for improvement, the Employment Tribunals have proved themselves agile through the pandemic in moving to an online platform, which seems set to remain for certain types of hearing. Investment is certainly needed and standards need to be equalised across the regions. Unfortunately, it will take a considerable amount of time to catch up with the backlog. It is for the Government to ensure that access to justice through the Employment Tribunals is improved and protected.
This blog was written by Matthew Manso de Zuniga, Paralegal at didlaw
