Tribunal Backlogs: Sir Humphrey Strikes Again?

In an excellent blog post yesterday, Anya Palmer comprehensively demolished the story run in the Daily Telegraph on the 22nd June that said ETs were swamped with a backlog of over 500,000 cases, which came as a bit of a surprise to anyone who follows UK employment law.

The Telegraph seemed to confuse “single” cases with “multiples”, which gives the impression that there were 530,000 individual people waiting to have their cases heard.For reasons which Anya describes this figure is completely misleading as to the numbers of Claimants in the ET system.  The impression is given by the Telegraph that there is a tsunami of employee litigants all waiting impatiently for their claims to be heard, when the reality is very different.

Of course, there may be another agenda behind this. It may not be sloppy journalism at all but a deliberate attempt to foster the impression that the country is in the grip of an army of vexatious employees all intent on asserting their legal rights at the expense of honest businesses struggling to keep afloat in the midst of the direst economic circumstances. That’s quite possible given how eagerly the Telegraph reported on the Beecroft report. But I wonder if there isn’t a more subtle twist in all this.

The Beecroft report has been much criticised from all sides, including employers’ organisations like the EEF. Business leaders have been reported as getting upset with the Government’s lack of progress on reform. Even Adrian Beecroft admits in his report that the economic benefits to be gained from his proposals are unquantifiable. In short, what must have seemed like an easy way to garner business support has become a rather fraught exercise to promote a proposition that has no evidential basis.

The aim of the Beecroft report and the Government’s other reforms (such as increasing the qualifying period for unfair dismissal to two years) is to reduce the amount of Tribunal litigation in the name of reducing the burden on employers and stimulating the economy. But what if the real aim behind all this is not to make life easier for business owners but just to reduce the costs of the Tribunal system? That is clearly quantifiable but restricting the legal rights of individuals in the name of saving the state money administering the system that protects those rights is not quite such a palatable story.

There is demonstrable evidence that the Government is intent on reducing Tribunal costs: we’ve had the merger of the Courts and Tribunal services to create HMCTS, more cases will be heard by a Judge sitting alone and there is a review underway that is tasked with simplifying ET procedure. Perhaps most importantly issue and hearing fees are to be introduced for ET cases next year. Don’t forget that the Court system is supposed to be self-financing from the outrageously large fees it charges to litigants. If it isn’t possible to prove that employment laws are harming the economy, it is surely easier to make the case that the Tribunal system is overstretched, thus justifying reforms to reduce the numbers of claims being made?

Or maybe I have watched too many episodes of Yes Minister?

“Civil Service language: ‘Sometimes one is forced to consider the possibility that affairs are being conducted in a manner which, all things being considered and making all possible allowances is, not to put too fine a point on it, perhaps not entirely straightforward. 
Translation: ‘You are lying’”