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40,000 backlog at Employment Tribunal

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A legal employment expert has estimated some 40,000 cases may be waiting to be heard by the Employment Tribunal, due in large part to a lack of funding for HM Courts & Tribunal Service in recent years.

Alan Lewis of Constantine Law based his estimate on the high number of recent Employment Tribunal judgements: seventy-eight were published online in the 24 hours to 3.38pm on Friday August 14.  According to a statement released by the law firm, Lewis believes that many claims are being processed at present but in spite of that, “we still see long delays in listing cases for hearing”.

The Employment Tribunal is one of two tribunals that deal with employment status.  The other, which contractors may be more familiar with, is the Tax Tribunal, which hears IR35 appeals and makes decisions on whether contractors are “inside” or “outside” IR35, i.e. genuinely self-employed, or “deemed” employed for tax purposes.  The Employment Tribunal uses some of the same criteria in its work making decisions on whether individuals are employed, self-employed or workers.

Whilst contractors may have historically dealt more with the Tax Tribunal in employment status matters, changes to IR35 being introduced next April may mean that more contractors seek clarification from the Employment Tribunal as to whether they are due the rights of employees, such as sick pay, holidays and other statutory benefits.

The Employment Tribunals National User Group, who met at the end of June this year, said:

  • Coronavirus has led to a significant increase in the Employment Tribunal backlog, which was increasing by about one per cent each week.  “There can be no doubt that this is likely to increase even further after the demise of the Coronavirus Job Retention Scheme when there are more redundancies,” the group said.
  • There was already a significant backlog before Covid-19 became an issue.  There were about 30,000 single cases as of March this year, rising to 36,600 in June.
  • Waiting times for listings of hearings are panning out as follows: as of June 2020, the South-East region is listing two to three-day cases for 2022, the London South region was listing two to three-day cases for mid- to late 2021, and every other region in England & Wales was listing two to three-day cases in the first half of 2021.

Mr Lewis contends that the backlog has actually been caused by “a huge lack of funding” in the courts and tribunals service over recent years.  “The fall-out from the Covid-19 pandemic has brought these issues to a head,” he said. “The system is in danger of being completely overwhelmed, particularly when the CJRS comes to an end.  More recourses are urgently needed, including more judges.”

20th August 2020.

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