Delays, Prospects and Recovery of Awards: Is the First Tier Employment Tribunal system sufficient for Equality Act claimants?

“Good work: The Taylor review of modern working practices[1]” (“the Taylor Review”) published in July 2017 tackled several areas and issues within the employment sphere, including worker status. The Taylor Review states that “Britain has some of the world’s strongest employment rights”. It also recognises however “for these rights to be fully realised, the system for enforcing them must be clear, fair and efficient for both workers and employers”. Within the Taylor Review, Greg Clark, Secretary of State for Business, Energy and Industrial Strategy, accredited the success of the UK labour market to “an employment law and policy framework which strikes an effective balance between flexibility and worker protections”[2]. Enforcement of these employment protections is reliant primarily on individuals bringing claims in the First-Tier Employment Tribunals (“the ET”).

However, in the wake of fire and rehire, employment status and backlogs within the ET, are Clark and the Taylor Review correct?

In 2021, the Employment Lawyers Association (“ELA”), an organisation representing over 6,000 employment lawyers in the UK, conducted a survey of its members’ experiences of the ET as it stood then[3]. Following this survey, Sole and Glynn described the ET as “crumbling and chronically underfunded”[4], struggling even prior to the Covid-19 pandemic.

The results demonstrate that despite the view of politicians, the experience of the lawyers on the ground dealing with the ET daily is markedly different; namely that the ET is not currently operating in line with the ambitions of the Taylor Review[5].

Delays

The most recent ET statistics show that on average, the number of days from a claimant’s ET1 being received by the ET to a first hearing is 335 for single claims, and 388 for multiple claims. This time could be for a preliminary hearing or for a final hearing. These statistics only cover the period up to March 2021, due to the ET implementing a new IT system. Therefore, no official statistics from HMCTS are currently available on the delays that claimants are experiencing in 2022.

In January 2022, the minutes of the national employment tribunal user group[6] painted a stark picture: the longest wait times for three-to-five-day hearings and five-to-ten-day hearings were in London South, London East and the Northwest ETs, who were listing hearings for the second half of 2023. Given the length of these hearings, they are likely to be open track cases, including unlawful discrimination claims. The majority of Equality Act 2010 (EqA) claims would be a minimum of three days, due to the nature and complexity. This means EqA claimants are waiting just under two years for a final hearing. Claimants requiring a hearing of ten or more days were being listed in 2024.

It is not just the ET that is suffering. In June 2022, criminal barristers went on strike over their current rates for the first time. The members of the Criminal Bar Association commented that proper funding was necessary to deal with the “unprecedented backlog of 58,000 cases”[7].

Figures published by HMCTS showed that, in the Civil Courts, the mean time for small claims and multi/ fast track claims to go to trial was 51.3 weeks and 73 weeks, 14.5 weeks longer than 2019 mean times[8]. The picture is clear: the entire UK justice system is struggling, not just the ET.

How many claims succeed

According to the ADP Workforce View in Europe 2019 Survey (“the Workforce View Survey”) 38% of UK workers self-reported that they experienced discrimination in 2019[9]. In 2019, there were an estimated 30.9 million people in the UK employed[10], suggesting 11,742,000 believed they were discriminated against in the workplace.

In the same period, 45,083 claims were bought under the EqA[11] in the ET (although note these figures do not include claims listed under “other” jurisdiction which were not allocated yet). Compared to the findings of the Workforce View Survey, this suggests that less than 0.4% of those who believed they experienced discrimination in the workplace presented an ET claim for it.

In 2019/2020, the mean awards for EqA claims were:

-???????Race discrimination, 29 claims awarded compensation at a mean award of ￡13,664

-???????Sex discrimination, 46 claims awarded compensation at a mean award of ￡17,420

-???????Disability discrimination, 72 claims awarded compensation at a mean award of ￡26,690

-???????Religious discrimination,?zero claims awarded compensation

Sexual orientation discrimination, 5 claims awarded compensation at a mean award of ￡27,936

-???????Age discrimination, 10 claims awarded compensation at a mean award of ￡26,612.

On the statistics available, only 157 of EqA claims were awarded compensation by the ET, so 0.35% of claims that were presented to the ET. Using the Workforce View Survey, only less than 0.0013% of people who experienced discrimination in the workplace were successful in being awarded compensation by the ET. Of these, over 51% did not receive payment in full[12].

Whilst these figures are not like for like, and therefore may not be entirely reliable as statistics, they certainly show a worrying trend. Firstly, those who experience discrimination are unlikely to claim in the ET. Secondly, even if they do bring those claims, an EqA claimant is more likely to lose a claim than win it. And even if successful, over 50% of claimants will not receive payment in full.

There are many potential reasons for these statistics. This does not account for claims withdrawn following settlement, or claims settled in the ACAS EC period prior to issue of proceedings. In 2019-20, 140,000 EC notifications were made to ACAS[13]. 77% of those did not lead to an ET claim. This was due either to settlement, or the claimant not progressing. In January to March 2021, the success rate for judicial mediations was 75.6%[14].

Further, the Workforce View Survey relies on people’s perceptions of their own treatment. Only an ET can determine whether someone has experienced discrimination within the legal definition of the EqA.

Claimants may feel the time, stress and cost trade-off is simply not worth it: the average ET awards are not particularly high. Fox comments that when a claim goes to a final ET hearing, there is rarely a winner, rather a loser and the “ostensible winner”, who will still have lost, taking into account stress, time, effort, costs, as well as collateral reputational damage[15].

Many EqA claimants do not bring claims for financial benefit, rather for recognition that the treatment they were subject to was unlawful. Speaking after her success against Police Scotland, Rhona Malone[16] refused to sign an NDA as part of a settlement, saying to do so would be hypocritical as she wanted acknowledgment and accountability for the victimisation that she was subject to, after raising complaints about sexism within the police[17]. She described the ET process as “excruciating and torturous”[18] but was ultimately victorious.?

However, the low number of successful claims suggests that the ET is not working for EqA claimants, where the motive is justice.

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Recovery of awards

The current backlog impacts not only when a claimant can expect a decision, but also when a successful claimant can expect to receive compensation. There is the risk of companies going into liquidation before a claimant can make a recovery. A 2013 study by the Department for Business Innovation and Skills found that just over 53% of claimants received full or part payment of their ET award without having to resort to enforcement, with the most common reason for non-payment being that the respondent was now insolvent[19]. This is compounded by the fact that the ET cannot directly enforce awards.?

Interestingly, those claimants who had third party legal assistance in bringing a claim, for example via lawyers or unions, were most likely to recover sums without having to enforce these awards (58% compared to 53%). This shows that there is an advantage to having representation, rather than acting as a litigant in person.?

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Conclusion

The ET is clearly not working within the expectations of the Taylor Review, to enforce the rights of EqA claimants. As Sole and Glynn point out, the rule of law is threatened where individuals cannot access effective determination of their rights within a reasonable period[20]. The Presidents of the English and Wales, and Scottish ETs themselves recognise that the jurisdictions that they lead are far from perfect[21].?

A key issue with the ET system is that it relies on individuals to hold corporate bodies to account. Many will not. They may lack the financial resources to obtain proper advice, or the fortitude required to start claims within a 3-month period.

The current low success rates of EqA claims and subsequent recovery are such that they do not act as a deterrent for unscrupulous employers. Although there are several options for reform, including to extend the current limitation period, the key barrier to justice currently is that the ET needs better funding and resources. Until such time as the ET can function effectively to determine claims swiftly, and enforcement strengthened, it will not be sufficient to protect the rights of EqA claimants.??

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Please note these statistics were used for the purpose of my final LLM dissertation and were correct at the time of submission on 31 August 2022.

[1] Matthew Taylor et al, ‘Good Work: The Taylor Review of Modern Working Practices’?Department for Business, Energy & Industrial Strategy <https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices> accessed 27 December 2021

[2] Department for Business, Energy and Industrial Strategy, Good Work Plan (CM 9755, 2018)

[3]The Employment Lawyers Association - Legislative and Policy Committee “EMPLOYMENT TRIBUNALS AND ACAS - Survey results and recommendations” < https://www.elaweb.org.uk/sites/default/files/docs/TribSurvey2021_LongFinal_13July2021.pdf#overlay-context=resources/responses-to-consultations/ela-survey-employment-tribunals-breaking-point> accessed 27 December 2021

[4]Jennifer Sole and Caspar Glynn “Employment tribunals—at breaking point?” [2021] 171 NLJ 7952, 17

9 Matthew Taylor et al, ‘Good Work: The Taylor Review of Modern Working Practices’?Department for Business, Energy & Industrial Strategy <https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices> accessed 27 December 2021

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[6] ‘National employment tribunal user group minutes for 17 January 2022’ (Gov.uk, 25 March 2022) <https://www.gov.uk/government/publications/national-employment-tribunal-user-group-minutes-january-2022--2/national-employment-tribunal-user-group-minutes-for-17-january-2022#regional-updates > accessed 18 July 2022

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Haroon Siddique, ‘Barristers in England and Wales stage first five-day strike over legal aid funding’ (The Guardian, 18 July 2022)

< https://www.theguardian.com/law/2022/jul/18/barristers-in-england-and-wales-stage-first-five-day-strike-over-legal-aid-funding#:~:text=Barristers-,Barristers%20in%20England%20and%20Wales%20stage%20first%20five,strike%20over%20legal%20aid%20funding&text=Barristers%20are%20heading%20to%20parliament,justice%20system%20to%20its%20knees./ > accessed 11 August 2022

[8] ‘Civil Justice Statistics Quarterly: January to March 2022’ (Gov.uk, 1 June 2022)?< https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2022/civil-justice-statistics-quarterly-january-to-march-2022> accessed 11 August 2022

[9] Neil Franklin ‘Discrimination against workers highest in UK’ (Workplace Insight, 14 June 2019) <https://workplaceinsight.net/discrimination-against-workers-highest-in-uk/ > accessed 20 August 2022

[10] ‘ Employees in the UK: 2019 Number of employees in the UK, full-time and part-time, by sector, industry, country and English region, from the Business Register and Employment Survey (BRES)’ (ONS, 6 November 2020) <https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/businessregisterandemploymentsurveybresprovisionalresults/2019#:~:text=Main%20points,increased%20by%2035%2C000%20(0.7%25)> accessed 20 August 2022

[11]

‘Tribunal Statistics – Annex C’ (Gov.uk) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/871935/Tribunals_Annex_C_Q3_2019-20.ods > accessed 11 August 2022

[12]??‘Payment of Tribunal Awards: 2013 Study’ (Department for Business, Innovation and Skills, 2013) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/253558/bis-13-1270-enforcement-of-tribunal-awards.pdf> accessed 14 August 2022

[13] ‘ Annual Report and Accounts 2019-20’ (Advisory, Conciliation and Arbitration Service (Acas),?2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/900245/Acas_annual_report_and_accounts_2019_to_2020_-_web_accessible.pdf> accessed 21 August 2022

[14] ‘Exclusive: judicial mediation successful in 75% of cases’ (Time Johnson/Law) < https://www.timjohnson-law.com/single-post/exclusive-judicial-mediation-successful-in-75-of-cases > accessed 25 August 2022

[15] Richard Fox, ‘ Employment tribunals – what does a win actually look like?’ (HR Magazine, 18 July 2022)

<https://www.hrmagazine.co.uk/content/comment/employment-tribunals-what-does-a-win-actually-look-like> accessed 18 August 2022

[16] Mrs R Malone v Chief Constable of the Police Service Of Scotland UKET 4112618/2018

[17]Katie Hunter ‘Police Scotland pay out almost ￡1m over sexism case’ (BBC News, 13 May 2022) <https://www.bbc.co.uk/news/uk-scotland-61427216 > accessed 22 August 2022

[18] Jane Clinton ‘Former Police Scotland officer hopes ‘torturous’ tribunal win will help women’ (The Guardian, 14 May 2022)<https://www.theguardian.com/uk-news/2022/may/14/former-police-scotland-officer-hopes-torturous-tribunal-win-will-help-women> ?accessed 22 August 2022

[19] ‘Payment of Tribunal Awards: 2013 Study’ (Department for Business, Innovation and Skills, 2013) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/253558/bis-13-1270-enforcement-of-tribunal-awards.pdf> accessed 14 August 2022

[20] Jennifer Sole and Caspar Glynn “Employment tribunals—at breaking point?” [2021] 171 NLJ 7952, 17

[21] Judge Barry Clark, Judge Shona Simon ‘A road map for 2022-23’ (Judiciary 31 March 2022) < https://www.judiciary.uk/wp-content/uploads/2013/08/ET-road-map-31-March-2022-final.pdf > accessed 24 August 2022