Maximise judicial resources to tackle the spiralling Employment Tribunal backlog

Swifter resolutions must be the focus of Employment Tribunal reforms, say solicitors’ leaders.

The Law Society of England and Wales has submitted its response to the Senior President of Tribunals’ consultation on panel composition in the Employment Tribunals and the Employment Appeal Tribunal, which closes today (27 April).

“Our overriding priority is that the Employment Tribunal backlog is tackled so that employees and employers can get much swifter resolutions,” said Law Society president Lubna Shuja.

“We therefore support improvement in the ability to utilise judicial resources, as long as justice is achieved.

“The default position should be that those cases which are highly technical should be heard by judges on their own. The decisions made in such cases are normally heavily based on legal interpretation and the absence of lay members from such cases will not have an adverse impact on the delivery of justice.

“For those cases which are based around working relationships and industry practices the default should be that they are heard by a panel of one judge and two lay members. This would include most unfair dismissal cases.

“Lay panel members are likely to be closer to the world of employment/industry than a judge. This makes them well placed to contribute effectively to the assessment of the reasonableness of an employer’s actions.”

Data for December 2022 showed 50,518 outstanding Employment Tribunal cases compared to 47,041 in December 2021, with the backlog rising steadily month after month.

Cases are often listed for hearing more than 12 months from when the request was first made, while more complex claims can take more than two years to get a judgment.

“We disagree with there being a power to direct that a case be heard by a panel of two judges,” added Lubna Shuja.

“Having two judges could lead to a split decision, which would cause a delay in getting a resolution to a case. In particularly complex cases a judge could sit with two lay members who have expertise in the matters that need to be decided.

“Given the scarcity of judges and the spiralling backlog, it is a better use of resources to have two judges hearing two different cases.”

Notes to editors

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