Employment tribunals, although not fully fledged courts, are a vital mechanism for resolving disputes between an employee and their employer, enabling workers to receive justice. Indeed, some tribunal cases have resulted in excellent outcomes for workers; for instance, Unison’s victory at the Employment Appeal Tribunal in June 2021 means that employers can no longer mistreat employees who take part in union-organised workplace disputes.
However, the strain on tribunals caused by the pandemic has highlighted the need for investment and reform. The number of tribunal claims accepted last year was at its highest since 2013; part of the reason for this was a rise in claims relating to furlough and redundancy (with unfair dismissal claims rising 11% from 2019/20). Furthermore, in 2020, as pointed out by Citizen Advice, tribunals suffered from two thirds of their facilities closed due to covid; this resulted in the proportion of claims being successfully disposed of falling from 85% to 67%. What these statistics do not highlight is the number of cases that did not make it to tribunals due to falling foul of the arbitrary time limits for lodging a claim. If investment and reform does not come, justice for workers will become harder and harder to obtain.
Currently, the mechanism for accessing tribunals is designed to manage excess demand. As of 2014, when attempting to access an employment tribunal, an employee will first need to attempt early conciliation instead of going straight to a tribunal. This means that they will have to contact The Advisory Conciliation and Arbitration Service (ACAS). The idea being that the dispute can be resolved at this stage without having to go to a tribunal; sometimes it can, other times it cannot. In most cases (including, unfair dismissal and discrimination) the time limit for bringing the case to ACAS is three months minus one day.
This time limit is essentially another way of managing the demand for tribunals. Consequently, employees are often denied justice not on the merits of their case but because they did not have sufficient opportunity to access the means of having their case heard. Equally, an employment tribunal is often limited on the penalty it can impose upon an employer. The responsibility for ensuring employers pay tribunal awards currently resides with the department for Business, Energy and Industrial Strategy. Despite the government’s 2019 manifesto pledge to create one, there is currently no single enforcement body for employment rights. These structural limitations in tribunals mean that employment law is too often not applied and enforced and bad employment practises are allowed to fester.
Fortunately, there is already a useful template for tribunal reform: the recommendations of the Law Commission (the statutory independent body responsible for reviewing the law) in 2020. Some of the more eye-catching recommendations were that the time limit for bringing a claim should be six months, that breach of contract claims can be heard for workers who are still employed, and that employment tribunals be allowed to award damages of up to £100,000 (currently they can only give up to £25,000). The effect of these recommendations alone would give tribunals more teeth, expand the options available to employees, and mean that less employees fail to bring their claims because of the arbitrarily short deadline. All of these are much needed, and a further expansion of employment tribunals would be to give all workers day one rights and have a single legal category of worker. Labour have pledged to do this and extend tribunal time limits.
However, there is no point in granting employment tribunals more powers if they will not also be given more funding to increase their capacity by recruiting more staff and judges. The government is evidently not interested in doing this. Thus far, the government’s reforms made in October 2020, have amounted to little more than tinkering around the edges of the current system. Virtual hearings will become more prevalent, some administrative tasks normally performed by Employment Judges will be delegated to ‘Legal Officers’, and the ACAS conciliation period will be extended to six weeks as opposed to one month. However, without further investment, even many of these piecemeal reforms will only serve to increase the strain on the system and add to the already bloated backlog of cases.
Too often the law explicitly serves the interests of the powerful, and employment law is already heavily weighted in favour of the employer. The consequence of cases not making it to tribunal, and the time taken to deal with the ones that do, is that poor employment practises are in effect decriminalised. If tribunals do not see investment and reform, the law’s inability to enforce itself renders it a tacit ally to bad employers and justice for workers will become increasingly rare.