‘Five challenges’ to Employment Tribunal System explain delays

The number of in-person hearings is rising but video hearings are here to stay. That is the main message from the President of the Employment in England and Wales, Judge Barry Clarke. We’ll speak to a lawyer to see how those hearings are playing out in practice, from a Respondent’s perspective.

Barry Clarke’s comments come in the employment section of the Senior President of Tribunals Annual Report 2022. He says: ‘We continue to ‘clock up’ well over 2,000 hours on the Cloud Video Platform each week. Our road map contains more details about how we plan to use video and telephone over the coming year, and our aspiration to reduce reliance on video in our more complex cases. We anticipate moving from CVP to its intended replacement, the Video Hearings service during the coming year.’

He identifies five challenges for the Tribunal System, problems affecting service levels:
1 There continues to be a significant problem of excessive waiting times, especially in London and the South East of England. 
2 There has been a high turnover of staff in many regional offices, and significant understaffing in many locations. 
3 The physical estate in some regions is too small, too frail, or both. 
4 Operational and strategic decision-making has been impaired by the absence of management information since Spring 2021. 
5 The Employment Tribunals north and south of the border are now in the grip of the modernisation process known as HMCTS reform.

All of those factors combined mean users of the tribunal system continue to face lengthy delays and challenges getting the right documents, in the right form, in front of the panel. 

So, let’s hear more about that. Rebecca Sulley is one of the team of lawyers based in Birmingham with a handle on what’s happening with claims across the various UK offices. Earlier she joined me by video-link to discuss the users’ experience: 

Rebecca Sulley: “So, the tribunal system are looking to reform to become online in terms of filing ET1 responses, filing your ET3 and also being able to log on to a portal to check the status of your case as it goes along. Now currently, it's been trialled in Leeds and Glasgow, and Birmingham are soon to join the trial, and I think it's fair to say we haven't seen a huge amount of cases where they've offered this online portal option, so I think the progress is rather slow but, hopefully, in the long run, it's something that will really reform the tribunal system and will mean that we can do away with the numerous emails and calls to the tribunal and you'll be able to log on and log all of your documents online and see the response from the tribunal.”

Joe Glavina: “Moving on to delays, Becci, last time we talked about this it was a big issue. Is that still the case, and is it regional?”  

Rebecca Sulley: “Yes, so there are still a large number of delays in the tribunal system largely because they're short staffed both administratively and also judicially, as well. So, we're seeing some of the biggest delays remain in London and a lot of cases we're finding three day hearings not being listed until the summer of 2024, which is obviously quite a long way away. Some of the Midlands tribunals are a bit quicker in terms of their listing for summer 2023 but there are still quite a lot of delays and what we're finding is the tribunal are saying, to try and help avoid further delays, is not to make unnecessary applications. So, if it's something you can discuss and agree between the parties, then that's preferable to asking the Tribunal to make an order. They are also saying that if you are making an application that's bound to fail, then that will obviously be frowned upon by the tribunal and we are finding judges are writing back quite robustly. So, it's really the case that you need to think carefully about whether this is something you should be writing to the tribunal about, or whether you should try and go to the other side to agree something directly. The other point I would just make is that the tribunals are saying that they are prioritising mediation. So, if mediation is something that you think you be interested in for your case then it is certainly worth making that clear in the title of any email that you wrote to the tribunal because they are looking out for those emails to try and avoid time in hearing.”

Joe Glavina: “Now moving on to documentation. This is gradually all moving online. How is that working?  

Rebecca Sulley: “The tribunals’ aim is that we should be able to upload documents via a document upload link. Now, they have had quite a few problems with being able to actually achieved this so we're only finding a few tribunals in practice will provide you with a document upload link and often you have to ask for this. So, what we are still finding is that it's quite problematic in terms of getting large bundles over to the tribunal. We, for example, can use Mimecast to send them over, but you also sometimes have to split bundles up. So, there still isn't a very good resolution for getting soft copy bundles over to the tribunal at present. One thing I would say is that the tribunals all have slightly differing approaches to bundles, when they want the bundles by and what they want the bundles to look like. They will send out a letter explaining exactly what they want so it's really important that you read that and make sure the bundle is in compliance with it.”

Joe Glavina; “Last question, Becci. What about witnesses based abroad giving evidence remotely?” 

Rebecca Sulley: “So, we're still finding quite a few problems where we have witnesses who are based abroad and are hoping to give evidence by a CVP. So, what the Tribunals Service have said is that parties are to let them know as soon as possible if a witness is going to based abroad when they're giving that evidence and the Tribunal will liaise with the Taking of Evidence Office to try and get authority for them to give their witness evidence from abroad or, alternatively, find out if they are being refused to give witness evidence. What we're seeing here is that there are some countries where it is actually quite difficult for witnesses to give evidence and it might be that they are not legally permitted to give witness evidence from abroad which can, of course, create real problems because you would then need them to return to the UK to give their witness evidence, and we’re also finding some quite long delays in getting a response back. Some tribunals are asking the parties to contact the Taking of Evidence Office and we have seen cases where, because we haven't heard back from them, we're having to get hearings postponed, and quite lengthy hearings postponed. So, it's really not a very ideal situation and what I would say is if you do have a witness based abroad who will be giving evidence it's really important that you contact the tribunal as soon as possible to let them know, and make sure you're frequently chasing to get a response back in relation to whether that witness can legally give evidence.” 

The employment tribunals section of the Senior President of Tribunals Annual Report 2022 is in two parts. What’s happening in Scotland is covered by Judge Shona Simon who was President of the Employment Tribunals in Scotland when she wrote that section – she retired in July. That’s at page 89. The view of England and Wales starts at page 97 – that’s by Judge Barry Clarke. We have put a link to that Report in the transcript of this programme.
- Link to Senior President of Tribunals Annual Report 2022