EMPLOYMENT TRIBUNAL BACKLOG: THE IMPACT ON HUMAN RESOURCES DEPARTMENTS
Briefing by Eadie Dziemidowicz
According to a new analysis given by the HM Courts & Tribunals Service, an agency of the ministry of justice responsible for the administration of employment tribunals in the UK, the number of exceptional employment tribunal cases that are awaiting a hearing or decision has reached over 50,000 at the end of last year.
The research, centred on HM Courts & Tribunals Service records, discovered that there were ‘50,518 outstanding cases contained within the system in December 2022, a substantive increase from the 47,041 outstanding cases in December 2021’, with the backlog still set to rise incrementally in the subsequent months.
The reasons for the backlog
As The Law Society president Lubna Shuja has recently stated, ‘since employment tribunal fees were abolished in 2017, the number of claims has increased, but this has not been matched by the resources needed to deliver justice promptly for those turning to the tribunal’. In turn, she connects this to the broader societal impacts the backlog has on individuals and businesses.
She stated, ‘this means people and businesses are facing prolonged periods of uncertainty, which is likely to take a high toll both personally and financially, with the cost-of-living crisis hitting individuals and businesses hard’.
This is despite the fact ‘that a previous People Management report revealed that judges did not exercise their discretion to dismiss claims in any of the 94,330 new cases received by employment tribunals between the period of 2018-2019’.
Government intervention and problems associated with this
One critical reform to tackle the backlog of cases within the HM Courts & Tribunals Service was government intervention in December 2022, in which they invested £2.85 million into the system. The government invested this money into the system with the intended outcome of 1,700 cases to be heard before judges by the end of March 2023.
However, one of the fundamental issues associated with the government intervention is that the statistics highlighting how the government investment has increased the number of cases being heard have not been published for the first two months. This creates a potential problem as we cannot analyse if this investment has benefited the Employment Tribunals department and, in turn, alleviated the impact on HR departments.
Hence, this leads to the second question of how the backlog of employment tribunal services directly impacts HR departments.
Impact of the backlog on HR departments and how can they alleviate these issues
As the Law Society had explained, one of the key issues is that ‘cases are often listed from hearing more than 12 months from when the first request was made, while even more complex cases can take around two years to get a judgement’.
Thus, HR departments will be impacted from a business point of view; the backlogs create a lack of certainty for parties whilst they try to navigate an already complex litigation issue. There is also the added fear that the employee or employees involved in the claim may leave the business when the case is eventually heard.
How can HR departments alleviate the issues associated with the backlog?
Alan Lewis, who is an employment partner at Constantine Law, stated that ‘a tip for HR departments is that if the employer enters into a settlement agreement with an individual, they need to make sure that they include a provision that they agree to assist with any investigations and tribunal proceedings to prevent them from leaving the business’. Hence, this would ensure legal safety for the HR department if they can secure legal confirmation that the employee involved in the claim cannot leave the business.
Furthermore, Lewis suggests that ‘HR teams and employers should consider requesting judicial mediation’. Judicial mediation is a form of alternative dispute resolution which involves bringing the parties together before a trained judge, and the role of the judge is to try and assist the parties in resolving their disputes which could potentially include remedies that would not have been available at a hearing before an Employment Tribunal. Thus, this method could be adopted by Human Resources departments to close a case more quickly.
Impact on the legal sector
Employment Lawyers will likely face a grievous impact due to the backlog. As such, they must utilise other processes to ensure their clients’ claims will be heard.
Such processes could include judicial mediation; however, they should advise their clients to follow company internal policies and procedures to resolve a problem before it is needed to be heard by the tribunal service.
Nevertheless, this problem will not disappear in the near future, and that is why more effective reforms need to be enacted by the government so that lawyers can feel confident in utilising the HM Courts & Tribunals Service to settle a claim for their client.
Sources referenced
INCREASING NEURODIVERSITY IN THE LEGAL SECTOR
Briefing by Aqua Koroma
It is a fact that no two human brains are identical. Such differences may be more pronounced in some leading to the classifications of ‘neurodivergent’ and ‘neurodiversity’. It is estimated that 1 in 7 people are neurodivergent.
A non-medical term, neurodivergence originates from its root definition in neurodiversity; the latter definition was contrived between 1997 and 1998 by Judy Singer, an Australian sociologist who happens to be autistic.
Defining these cerebral differences meant a greater understanding of them; however, with greater awareness came prejudices, stigmas, and apathy against those for whom neurodiversity is a particular way of life.
Further, employers misjudged neurodivergence as indolence or a lack of intelligence perceived as the norm. Ironically, these misconceptions predominantly stemmed from an inadequate discernment of the subject matter.
Legislation
The seemingly recent greater appreciation of differences in the quest for inclusivity has inevitably translated into enacted legislation, which has helped catalyse positive attitudes towards neurodiversity. Subsequently, legislation, such as the Equality Act 2010 (EA 2010), has led to workplaces adapting to meet the needs of neurodivergent employees whilst also removing barriers impeding neurodivergent persons during recruitment processes.
Many neurodivergent employees would not attribute their condition to a disability. However, parameters proscribed by the EA 2010, which also applies to employees with disabilities, define neurodiversity as embodying those protected characteristics.
The statutory guidance to the EA 2010 states, ‘a disability can arise from a wide range of impairments which can be developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia’. Attention Deficit Hyperactive Disorder (ADHD) and Attention Deficit Disorder (ADD) are non-spectrum disorders; nevertheless, both ADHD and ADD share some of the characteristics of autism, with varying degrees of manifestation in individuals. Therefore, employees with ADHD and ADD are also protected by the relevant provisions of the EA 2010.
For a workplace not to be directly or indirectly discriminatory towards a worker with a disability, the EA 2010 clarifies that neurodivergent employees have the right to ‘legal protection against discrimination, harassment and victimisation that relates to their condition. Employers also have a duty to make ‘reasonable adjustments”. Moreover, the Act also clarifies that ‘discrimination by association’, that is, discrimination against an employee with a neurodivergent dependent, such as a child, is prohibited.
Neurodivergence in the legal sector
Misgivings often resulted in neurodivergent employees suffering more or at greater risk of suffering from mental illnesses, further exacerbated by the stress of conducting themselves in the same ways as their neurotypical counterparts in attempting to acclimatise to work environments and preventing discrimination or victimisation.
However, the tide turns.
There is a growing respect and understanding of these divergences, and one can go so far as to say that such differences are increasingly celebrated in the workplace.
According to The Law Society, the legal profession ‘benefits greatly from neurodivergent minds’ as they ‘are often highly skilled in problem-solving, communications, strategy creation, trouble-shooting, improving processes, and lateral and creative thinking – all qualities essential to the legal profession’. Additionally, neurodivergent employees typically have better long-term memories and pattern recognition skills.
A national report from Drexel University stated that ‘51% of workers on the spectrum have higher skills than what they need to do their job’. JP Morgan & Chase’s Autism At Work program discovered ‘that autistic employees were 48% faster and up to 92% more productive than their non-autistic counterparts – with common factors including strong visual acuity, attention to detail, and a superior ability to focus’.
Also, it is well known ‘that dyspraxia is closely linked to innovation, and those with dyspraxia are often very creative and exhibit high levels of emotional intelligence’. Moreover, neurodivergent persons with ADHD can hyperfocus, translating into tasks completed to high standards within shorter periods, with the additional possession of advanced capabilities to fully dedicate themselves to improving their skill sets.
Impact and the improvements required
All of the skills thus aforementioned are invaluable to the legal profession. Notwithstanding the legal protection afforded by current legislation, it is still evident that neurodivergent persons stepping into the profession of their choice are often met with obstacles owing to misgivings and the lack of suitable adjustments to enable a smooth transition. On those accounts, there is still some way to go in debunking the stigmas unjustifiably attached to neurodiversity.
Debunking stigmas include reasonable adjustments made in the workplace and the recruitment process to accommodate those so afflicted. It also consists of the education of the workforce on neurodiversity. Additionally, and perhaps most importantly, neurodivergent persons must be encouraged to self-advocate for their conditions and be clear about their circumstances. Conversely, although the law automatically affords protection against discrimination, harassment, or victimisation, a neurodivergent employee has the right to refuse those protections by choosing not to be recognised as a neurodivergent person.
There are ever-present dangers in debunking stigmas, however. For instance, in the quest for the legal sector to be an inclusive workspace, neurodivergent conditions may be romanticised in that unsolicited and unfounded judgments are passed about an individual’s manifestation or representation of neurodivergence. Another example is that neurodivergent employees may be hyper-marginalised, causing the same effect initially sought to be avoided.
In all, vast improvements have been realised in widening the inclusivity sphere to accommodate neurodivergent employees. However, neurodiversity is still an indeterminate subject, a grey area, if you will. The current legal provisions for protecting those classified as neurodivergent feel like an afterthought, with many of those affected observing that racism and sexism, for example, have entire legislation dedicated to eradicating them.
As such, it remains to ask; is it time to enact key legislation dedicated to neurodiversity to continue facilitating accessibility and inclusivity in the legal sector?
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