Delays and increasing backlogs in the Employment Tribunal risk undermining ‘fundamental aims’ of our justice system, Peers warn

Lords Constitution Committee says that considerable new effort and investment is required 'for justice to be done, and be seen to be done'

Delays and increasing backlogs in the Employment Tribunal risk undermining the 'fundamental aims' of our justice system, the House of Lords Constitution Committee has warned.

In Covid-19 and the Courts - the first of three reports on the constitutional implications of Covid-19 - the Committee focuses on the impact of the pandemic on courts and tribunals in England and Wales. While highlighting the 'monumental effort' made by those working in the courts to maintain a functioning system during the crisis - including moving to online hearings, opening temporary court rooms, and adapting buildings to facilitate social distancing - the Committee nevertheless warns that those efforts should not obscure the scale of the challenges now facing the courts and tribunals.

In particular, looking at the Employment Tribunal, the Committee points out that by late February 2021 the number of outstanding cases stood at more than 50,000 - a 45 per cent increase compared to pre-Covid levels - while the average waiting time for a hearing was 49 weeks, up from 15 weeks in December 2019.

With the backlog only likely to increase due to rising unemployment in the wake of the pandemic and the impact of Covid-19 on working conditions, the Committee emphasises that the timely delivery of justice underpins the rule of law and that the government must - 

• increase the number of sitting days in the Employment Tribunal; and 
• set out detailed plans for reducing the backlog, including a timeline for implementation.

NB - in addition, the Committee says that - 

• although remote proceedings have been necessary to maintain the administration of justice during the pandemic, there is a risk that reduced face-to-face contact can alienate litigants - as it can be difficult to conduct remote hearings with an appropriate level of empathy and humanity in sensitive cases - and the remote format poses a number of practical challenges that make it more difficult for people to fully participate or to represent themselves, including limited IT access or bandwidth, distractions at home, sensory impairments, or English as a second language;
• justice policy and the operation of the courts should be based on detailed high-quality data, and Her Majesty's Courts and Tribunals Service's (HMCTS') proposals to collect and publish better quality data is to be welcomed, but its words have not translated sufficiently quickly into action, with its response to Dr Natalie Byrom’s 2019 Digitila Justice report, for example, framed in broad terms and lacking a clear timeline for action; and
• while the Ministry of Justice and HMCTS must continue to deliver technological change to enhance the capabilities of courts and tribunals to make effective use of remote hearings in appropriate cases, operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law.

Insisting that the quality of the justice system must not be compromised, even when major challenges threaten its usual modes of operation, Chair of the Committee Baroness Taylor said - 

'The courts system was not well prepared for disruption on the scale caused by the pandemic. Courts funding had fallen significantly in real terms over the preceding decade and a programme to modernise court technology was struggling to deliver the improvements needed.

There is much work to be done to address the constitutional consequences of the pandemic for the courts. The government needs to renew its vision and increase the funding to achieve it. For justice to be done, and be seen to be done, considerable new effort and investment is required.'

For more information, see Report published on the impact of COVID-19 on courts and tribunals in England and Wales from parliament.uk