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Half a million employment tribunal claims stuck in backlog

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22/10/2020
A charity warns there’s a ‘perfect storm’ brewing in the tribunal system as the claims backlog is set to pass half a million due to the coronavirus pandemic.

Rising demand for employment tribunal services at a time of restricted capacity means outstanding claims could pass 500,000 by Spring, according to charity Citizens Advice.

Even before the pandemic, the employment tribunal system already had over 440,000 outstanding claims from both individuals and groups of employees.

Its analysis of employment tribunal data revealed that this figure has already passed the post-2008 financial crisis record, with 37,000 workers waiting in the queue.

Further, it found that the average wait time for single claims related to discrimination and unfair dismissal is 38 weeks.

This means anyone putting in a claim this month may not see their case heard until July 2021, while more complex cases could be heard in 2022 the charity warned.

And for disabled people, those asked to shield, parents and carers , they’re at least twice as likely to be facing redundancy as the rest of the working population.

Citizens Advice said it has helped 28,000 people with redundancy issues since the March lockdown and advisers have raised concerns over potential malpractice such as being forced to come to work despite a worker needing to self-isolate; a parent who believes they’re at risk of redundancy over a colleague because they can’t work overtime; and a worker who lost their job via a text message.

For some claimants, they may pull out of a claim all together. The charity said that between April and June, the number of cases being resolved – through decision, settlement, withdrawal or dismissal – dropped by 56% to an 11-year low.

Dame Gillian Guy, chief executive of Citizens Advice, said: “Employment tribunals ensure workers’ rights are protected in some of the most serious cases, but right now they are facing the perfect storm of rising demand at a time of restricted capacity.

“We know that disabled people, those asked to shield, and parents and carers are at greater risk of redundancy. But if they want to challenge an unfair dismissal or discrimination they already face waiting nine months for their case to be heard, and the pandemic is only going to increase this.

“Workers who have been treated unfairly need to know employers that break the rules will no longer have lengthy waiting times on their side. Employment tribunals need more emergency funding, and ultimately workers need a one-stop shop to protect their employment rights.”

How to challenge an unfair redundancy

Matthew Bradbury, senior employment expert at Citizens Advice, sets out what steps you can take if you’ve got a problem at work:

1) Talk to your boss. You should always try to resolve a problem at work by speaking to your employer or sending them a letter. If you need help you can contact Citizens Advice for support. If you’re a member of a trade union it’s also worth asking if it can help.

If the issue isn’t resolved, your employer should have a formal procedure for raising a grievance. Citizens Advice has a template grievance letter you can use. The manager who deals with your grievance should be impartial and not involved with what’s happened so far. If still not resolved, you might want to take your complaint to an employment tribunal.

2) Don’t miss the three-month deadline to start Acas early conciliation. Acas is a government-funded body whose job is to help resolve workplace disputes. Before you can start a tribunal claim the law requires you to start Acas early conciliation. You must do this in three months minus one day from the date when the problem you are complaining about happened (you have six months minus a day for a claim about a redundancy payment or an equal pay claim). For example if you weren’t paid your wages on 31 October, you have to tell Acas that you want to make a tribunal claim no later than 30 January.

When you tell Acas you want to make a tribunal claim, it will try to help you reach an agreement with your employer before you make the claim. This conciliation process can last up to six weeks. It may result in a ‘settlement’ of your claim, where the employer agrees to resolve your problem and pay you any money you’re owed.

3) If this doesn’t work you’ll have around a month to escalate to an employment tribunal. If you can’t reach an agreement through early conciliation, Acas will send you an early conciliation certificate.

You will then always have at least one month from the date on the certificate to take your case to an employment tribunal. In some cases, depending on when the problem happened and when you contacted Acas, you might have slightly longer than a month.

It is very important you don’t miss the deadline, as in many cases, you’ll lose your right to go to an employment tribunal.

If you decide to go ahead, you’ll have to make a claim by filling in an ET1 form online. Your employer will then be asked to fill in a form. See Starting an employment tribunal claim for more information.

4) The tribunal will make a decision. When you’ve made your claim, it will start moving towards a hearing date. The average wait time for an individual’s case on unfair dismissal or discrimination to be decided is nine months, though this can vary depending on the type of case etc.

Acas will get involved again to see if there’s another chance to settle your claim. The tribunal will contact you to tell you what you need to do to start preparing for the hearing. At the hearing, both you and your employer will put your sides forward, this could include providing evidence, witness statements and cross-examination. In most cases your claim will be decided by a judge but in discrimination claims or more complex claims there will be two panel members helping the judge to reach a decision.

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