Senior President of Tribunals provides Justice Committee with update on performance of Employment Tribunals during coronavirus pandemic

Letter to Committee Chair warns that, despite 'innovative and robust' recovery measures, waiting times for hearings will continue to lengthen 'until more resources are available'

The Senior President of Tribunals Sir Keith Lindblom has provided the Justice Committee with an update on the performance of the Employment Tribunals during the coronavirus (COVID-19) pandemic.

In a letter to Committee Chair Sir Robert Neill dated 10 December 2020, Sir Keith highlights that -

'The pandemic has affected the Employment Tribunals in three principal ways this year. First, the need to reduce footfall in buildings, to ensure public safety, has reduced the ability to hold in-person hearings, even after the HMCTS estate began to reopen in the summer. Second, as the labour market has been disrupted, more claims are entering the system. Third, because the Employment Tribunals use a server-based case management system called 'Ethos', it cannot reliably be accessed remotely. Staff must therefore be physically present in the office, and in most venues used by the Employment Tribunals, effective office working is difficult to reconcile with safe 'social distancing'. These factors have accelerated the increase in the outstanding caseload of 'single' claims. For the week ending on 29 November 2020, the figure had risen to about 43,200.This is a 40 per cent increase since the March 2020 baseline.'

Sir Keith adds that, while the 'pre-COVID baseline' of outstanding 'multiple' cases in early March 2020 was about 5,200 cases (c.410,000 individual claimants), it had increased to about 5,900 (c.440,000 individual claimants) by the week ending on 29 November 2020.

Sir Keith goes on to set out a number of 'innovative and robust' recovery measures that are being taken in response to the pandemic, including that -

• the Employment Tribunals judiciary has embraced the HMCTS Cloud Video Platform (CVP) as a means of conducting hearings, with the result that contested hearings are now being conducted 'in all parts of the country, north and south of the border' using the technology;
• in the first nine months of 2020, Employment Tribunals in England and Wales made a net saving of 2,374 sitting days through judicial mediation; and
• plans are underway in England and Wales to develop a cohort of judges and members able to sit remotely on cases generated by any region - particularly 'those most in need, in London and the South East' - rather than only the one to which they have been assigned.

However, Sir Keith also cautions that -

'... the immediate response, impressive though it is, does not solve the systemic problems faced by the Employment Tribunals. These problems result from there being too few judges sitting in the Employment Tribunals, too few sitting days, too few staff, premises of variable quality and the effects of the poorly functioning Ethos case management system.'

Sir Keith adds that, while the CVP provides an important new vehicle for tackling the caseload, it is not a panacea, and that -

'Waiting times for hearings will continue to lengthen - particularly in London and the South East - until more resources are available. There is a continuing and pressing need for the recruitment of judicial office holders, caseworkers and staff, for the effective replacement of Ethos, for an improved online presence for the Employment Tribunals to help the parties in understanding what the system expects of them, further investment in video hearings, and an improved estate than can better support 'hybrid' in-person and video hearings. It would also assist the efficiency of the Employment Tribunals if improved support and publicity were provided to Acas - so that Acas can be more effective in helping to resolve employment disputes and can provide information that prevents disputes from arising - and if there is more funding for advice on employment law, which has over several decades become complex and technical.'

The letter from the Senior President of Tribunals to the Chair of the Justice Committee is available from parliament.uk