Half-million tribunal backlog is nightmare for employers, employees alike

This article was provided by Heather Wilmot (pictured), claims operations manager at ARAG UK.

The latest data released by His Majesty’s Courts and Tribunal Service (HMCTS), for the final quarter of 2022, make grim reading for anyone who may have to use the employment tribunal system at any time in the foreseeable future.

The headline ‘caseload outstanding’ figure may have dropped slightly from last year’s peak of 506,911 claims, but this total includes multiple claims so will inevitably fluctuate when single cases with perhaps hundreds or even thousands of claimants enter or leave the system.

However, even the new 475,004 headline figure means that there are still nearly half a million people waiting for their employment dispute to be resolved, and the data suggest that many will have to wait at least a year.

The Ministry of Justice (MoJ) published new figures in February, responding to a parliamentary question, that revealed the average waiting time between an employment tribunal claim being received and reaching its first hearing has increased more than 60%, from 30 weeks in 2011 to 49 weeks at the end of March 2021. In many cases, that might be just for a preliminary hearing.

While the half a million employees apparently waiting in the tribunal service queue is a truly staggering number, our analysis suggests that around 50,000 businesses are trapped in the same holding pattern, waiting for a dispute with an employee to be resolved.

There were 44,758 businesses waiting on single claims (those with only one claimant) at the end of last year, an increase of 8% in just 12 months, with over five thousand others waiting to defend a multiple claim, leaving a total open caseload of 50,291 at the end of January this year.

Like all HMCTS services, employment tribunal proceedings were inevitably affected by the pandemic, but the recently released data point to much deeper issues. The number of single cases outstanding, which provides a better indication of the backlog in the system, is the highest on record going back to 2008, roughly double what it was fifteen years ago, and has continued to increase since lockdowns came to an end.

Nor can the MOJ blame recent events. The total number of outstanding claims can rise and fall on the receipt or disposal of a single case with many claimants, but the number of cases accepted by HMCTS has outstripped the number disposed of, almost every quarter since 2015.

The problems this backlog creates are as intolerable for businesses at they are for employees who are waiting for their claims to be heard. Cases that are delayed a year before even reaching a preliminary hearing, leave both parties in a kind limbo. Over such a long time, recollections fade, costs increase, and satisfactory outcomes can be jeopardised.”

Larger businesses with many employees are likely to have experienced claims before and may even be accustomed to the time such matters now take. For the many SMEs that ARAG insures against the costs of legal problems, employment disputes have become even more disruptive.

We do what we can to help them resolve claims through mediation and hopefully to reach a settlement without troubling a tribunal, but this is a long-term issue for the MoJ that needs to be fixed.