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The Employment Tribunal in the Time of Covid

As the economy stagnates and the nation is furloughed, the Employment Tribunal is, along with everything else in the country, attempting to adapt to a new existence. As anyone who has anything to do with the Tribunal over the last twelve months will attest, things have come to a juddering halt, with a normal 3 – 6 months wait for a Hearing stretching out to well over 12 months. This is hardly surprising, and as yet we have seen nothing like what is likely to come when the Furlough scheme ends. In many cases, alas, the confidence with which many businesses, to say nothing of HMG, embarked upon this ‘interim’ measure to retain staff for better times will inevitably happen to have been misplaced. Remember, the Treasury initially conceived this as an emergency measure for up to 3 months, as we now pass a year.

Already, Tribunal claims are up. In the last quarter year for which figures are available (October to December 2020) individual claims are up 25% on the year before that, or over 13,000 people seeking the aid of the Court as their lives take an unexpected downward turn. Even more striking has been the rise in multiple claims, up a huge 82% on the preceding year, with 29,000 new cases involving more than one individual.

It is likely that employers are changing terms and conditions in response to the pandemic wholesale, up to and including large scale redundancies. This can only increase after furlough. Another trend has been a huge increase in age – as opposed to other forms – discrimination, up from 203 Claims in September to 1,166 in October. It is unclear whether this is wholesale replacement of older (and therefore generally higher paid) employees, or proportionately younger workers in more transient employment such as hospitality and catering, which sector has been effectively annihilated, if only temporarily.

All of this, unsurprisingly, has increased the backlog in the Tribunal and its administration, which was not exactly renowned as an exemplar of efficiency even in pre-Covid times. It has had a 45% rise to 51,000 outstanding claims. The end of furlough will undoubtedly cause another enormous spike in claims. The Government has increased the number of Judges to deal with cases, but without a concomitant increase in administrative support systems – which will not happen – the benefit of the latest judicial recruitment drive will inevitably be blunted.

The Ministry of Justice is hopeful that with the presumed national acquisition of herd immunity through vaccination, then the return of face to face hearings will reduce and ultimately remove the backlog. Wisely, the MoJ has resisted the temptation to suggest a timetable.

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