Guest Post: Is the ET backlog really a problem? – by Anya Palmer

I’m tremendously pleased to host this guest post from Anya Palmer a barrister from Old Square Chambers. As a leading employment law practitioner Anya is ideally placed to look at the how the press reports the workload of Employment Tribunals and compare that to what is ‘really going on’. 

Damn statistics

Is the employment tribunal backlog at a record high?  Is the employment tribunal system “completely overstretched”?  The Telegraph would have you believe it is so.

One in four tribunal cases takes more than three years to resolved, claims their Jobs editor Louisa Peacock and she bases this on “official figures” Here are the figures she relies on.

“One in four tribunal cases takes more than three years to resolve, official figures show in fresh evidence of the ‘completely overstretched’ system…

The latest figures from the Tribunals Service show there were 530,400 outstanding employment cases at the end of 2011 – a 17pc rise on the same period last year, and an increase of 23,600 cases on the previous quarter.”

Half a million cases outstanding?  That’s terrible!  Why weren’t we told?

Well, let’s look at the evidence.  Described as “fresh”, the relevant figures were in fact released by the Ministry of Justice three months ago and are freely available here: http://www.justice.gov.uk/statistics/tribunals/quarterly (first Excel file, called Tables, published on 28 March 2012).

If you turn up table 1.3 (Tribunals Caseload Outstanding by Jurisdiction) and focus on the Employment Tribunal figures, in particular the breakdown between single and multiple cases, a rather different picture emerges: 

                    2009-10   2010-11                                                       2011-12

Quarter      3                 1               2              3                4                 1              2                 3

Singles        35,500       31,600    30,500   31,400     28,500       28,700    27,800     27,000

Multiples    352,000    385,000  412,100  422,200  455,800    474,300  478,900   502,400

Total           387,500     416,600  442,700  453,600  484,300    503,100  506,800  530,400

Firstly, you will note that of the 530,400 outstanding claims, 502,400 are multiples.

Secondly, the figure for single cases has actually gone down over the last two years – something you will never read in the Telegraph.

It is true that multiple cases are rising steadily.  But does that mean the tribunal system is on its knees?  There have always been multiple cases: equal pay claims, unlawful deduction claims arising from contract disputes, and cases involving the Working Time Regulations.  These large multiples clearly have the potential to distort the figures.  That is why, every year when the tribunal statistics are published, the foreword explains that the figures for Working Time cases include 10,600 airline cases that are resubmitted every three months, for technical reasons to do with time limits.  That means that for those original 10,600 airline cases, another 42,400 cases are added every year.  But they are all the same case!  And they’ve been going since 2007.  No wonder the “backlog” is growing.  It passed the 200,000 mark in September.  But it’s still only 10,600 claimants, and they all make the same case.  Yes, over 200,000 of that 500,000 backlog of multiple claims represents essentially one case.

And that’s just the airline cases; as they are test cases, other cases on similar points of law are also stayed until all appeal stages of the airline cases have been concluded.

Of course it’s unfortunate that those cases have to be re-submitted every three months for technical reasons, if that gives rise to unnecessary administration work, but that doesn’t mean the tribunal system is on its knees: it means there is a technical rule on time limits which perhaps should be amended to provide for situations like this.  But all of those “cases” will ultimately be decided by one tribunal, not 200,000 tribunals.  So to suggest, based on these figures, that the tribunal system is “completely overstretched” is wholly unwarranted.

For a more realistic assessment of what happens to a typical case involving one individual, just look at the year to date clearance times for April to December 2011 (source: the same MoJ spreadsheet):

Employment Tribunals year to date clearance timetable

Table 2: Cumulative percentage of Employment Tribunal clearances that took place in April to December 2011

Quarter 3	2011-12
	25% point	20% point	75% point
Single	Less than 12 weeks	Less than 20 weeks	Less than 34 weeks
Multiple	Less than 34 weeks	Less than 2 years	Less than 3 years

So, 75% of single claims were resolved within 34 weeks, not 3 years. It’s only for multiple claims that one in four cases took more than 3 years to resolve.  And only a very small number of employers are defending multiple cases.

So why didn’t Louise Peacock mention that in her report?  The press release on which she relied for her article [http://www.emwllp.com/news/employment-tribunal-system-backlog-at-record-high/] whilst hardly offering a great analysis, did at least clearly indicate that the 3 year figure relates to multiples.  But Ms Peacock leaves the word multiple out and so gives the false impression that 1 in 4 of all tribunal claims take more than 3 years to resolve.

In any case, to suggest that if some multiple cases take years to resolve, there must be something wrong, is to completely misunderstand the way our legal system works.  Those airline cases, for example, involve points of law which need to be resolved by way of appeal. They have made their way from the tribunal up through the Employment Appeal Tribunal, the Court of Appeal, to the Supreme Court, then to the European Court of Justice and are now heading back to the Supreme Court. Meanwhile other cases are stayed precisely so that the parties and the tribunal don’t re-litigate the same points.  That’s how it works.  When the airline cases are over, the backlog figure will go down.  Guaranteed.  And when that happens, the Telegraph won’t cover it.  Also guaranteed.

Why does it matter?  Because the Telegraph is creating a myth about employment tribunals, that there is an ever increasing number of claims and something needs to be done about it, which judging by the second reading debate on the Enterprise and Regulatory Reform Bill last week, a number of Conservative MPs have swallowed wholesale.  And they will use this myth to justify taking employment rights away from as many workers as they can.   As reported in the Peacock article, Brendan Barber pointed out this myth in a Telegraph debate last Thursday:

“All of this debate is based on a degree of mythology,” he said. “The idea that employers are being taken for thousands and thousands of pounds, that there are armies of people lining up to take vexatious, frivolous tribunal claims, that is simply not a reality.”

And how did Adrian Beecroft, poster boy for employment law reform, respond to that?  As quoted in the Telegraph: “the fact that it’s a myth doesn’t matter.”

I say it does matter, and it’s time we started calling the Telegraph on its inaccurate and misleading reporting.