Since the Supreme Court ruled Employment Tribunal fees were unlawful, figures show that the number of claims has doubled. However, employer lawyers warn that the under-resourced Employment Tribunal system is now in a state of collapse.

When fees were introduced, claims fell by around 70 per cent. Given the dramatic fall, resources were cut: administration staff at Employment Tribunals were laid off and judges, who had previously heard those cases, moved elsewhere.

However, now the claims are rapidly rising, the Employment Tribunals remain under-staffed and under-funded. While employment solicitors say the situation varies depending on where you are in the country, many are reporting long delays in correspondence, hearings that are already being listed for 2019 and last-minute cancellations.

“I was recently instructed to attend a five-day final hearing by a direct access client,” says barrister Paul O’Callaghan. “The afternoon before the hearing was due to start the ET notified parties that the hearing has been pulled. No apology or explanation other than ‘limited judicial resources’.”

While this can be costly and frustrating for all parties, lawyers fear that the delays can also impact on the fairness of the system.

“Obviously the longer the delay, the more difficult it is for witnesses to recall events accurately, which in turn, affects the reliability of evidence and the fairness of the system,” says Keely Rushmore, senior associate at SA Law.

We asked employment lawyers for their views and here’s what you said. Please do add your thoughts in the comments section below (or get in touch here).

Rubel Bashir, employment solicitor at Slater and Gordon Lawyers UK, says:

“I have encountered delays from the Tribunal recently and more so since the new year. It is now taking months unfortunately for claims to even be accepted. I have been informed they have quite a lot of backlog. Some Tribunals are better than others.”

Elaina Moss, legal counsel at Royal Holloway, says:

“I have just received an ET1, with a notice of PH for mid-December…”

Charles Price, employment law and discrimination barrister, says:

“Yes, sadly hearings are being set down for 9 months into the future and important correspondence is not answered sometimes for months on end.”

Paul Griffin, head of employment at Norton Rose Fulbright, says:

“I have just had a four-day hearing listed to be heard in 12 months’ time!”

Danielle Ayres, employment solicitor at Gorvins Solicitors, says:

“It really depends which Tribunal office you are dealing with. Some of them turn things around pretty promptly, others don’t. I agree in relation to hearing dates. Already have one listed for 2019.”

Catherine Parkinson, senior consultant employment lawyer at Analysis Legal LLP, says:

“I fully agree with all the other comments here – one of my clients who claimed in December 2017 is listed for a Preliminary Hearing in May 2018. An ET told me that they are receiving 1000 pieces of post a day which explains the lengthy delays in dealing with correspondence!”

Keely Rushmore, senior associate solicitor at SA Law, says:

“Speaking to a barrister today, a two-hour case management hearing had to be postponed in January. The earliest two-hour slot available was not until August. On this basis the main hearing is unlikely to be scheduled until well into 2019. Obviously the longer the delay, the more difficult it is for witnesses to recall events accurately which in turn affects the reliability of evidence and the fairness of the system. It’s clear the Tribunals are understaffed and underfunded.”

Julie Dalzell, senior associate at Jacksons Law Firm, says:

“We have noted significant delays with the Tribunals acknowledging receipt of ET1’s and ET3’s and dealing with applications and other correspondence. I suspect this is a combination of more claims now in the system but reduced staff both administrative and judicial to assist with the rise in claims since the fees were abolished.

“Presumably the numbers of clerks and Judges were reduced as a result of the massive drop off in claims pre-July 2013 when the fees were introduced together with the other changes to the qualifying period and cap on awards for unfair dismissal, which are also a deterrent on the ability or willingness to pursue a claim.

Noel Deans, employment partner at Rosenblatt Solicitors, says:

“In our experience, employment tribunals are still under resourced. We have a hearing listed for this Friday which should have been heard in August and October. On each occasion we were informed the day before that the hearing had to be postponed because the tribunal could not guarantee there would be an available judge. Such situations are not uncommon and often create wasted costs for both parties.”

Rachael Hewitt-Gray, employee relations and HR professional, says:

“The reason for the delays I’m sure are many and wide ranging but there are definitely a lot more claims in the system. As well as being an HR professional, I’m a Lay Member at South West Employment Tribunal.”

Emma Tice, partner at Flint Bishop LLP, says:

“The amount of delay varies hugely based on geography.  With some Tribunals clearly keeping a better handle on things than others.

“However, what is also interesting is that Tribunals are increasingly reluctant to grant postponement applications when made by the parties for legitimate reasons.  My view is that this much stricter approach that we are seeing is based on the fact that Tribunals are reluctant to grant a request to postpone due to the worry of how long the delay would then be before the case goes to be heard, and their keenness to dispose of any cases they can as soon as they can. The delay issue has definitely been made worse by the removal of fees. There are more claims in the Tribunal now and they have fewer resources to deal with them.”

Please do add your thoughts in the comments section below (or get in touch here).

For more on the subject: The Employment Lawyers Association is currently asking its members for views and experiences on the issue (members can complete the survey online) and there’s a great piece here, by Richard Fox, a partner at Kingsley Napley (thanks to Ben Amunwa for sharing it).


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