Since the abolition of employment tribunal fees in 2017, the Employment Tribunal system has been overwhelmed. 

When the coalition government introduced fees in 2013, the volume of employment tribunal claims disappeared through the floor. As a result, the resources of the tribunal system were reduced. When fees were abolished in 2017 following successful challenges from the unions, the numbers of employment tribunal claims overwhelmed the, by then, “streamlined” system. A few years later, during which there had been no meaningful increase to tribunal resources, the pandemic added to that overwhelm, and we continue to see significant delays with many cases not being listed for full hearing for several years. 

This has an ongoing impact on the access to justice and also means that many claims now settle long before they reach the final hearing, as neither party wishes to be involved in litigation that may last for years.

The Employment Rights Bill, which is expected to receive Royal Assent before the end of the year, introduces a myriad of new employment rights, including the headline hitting right to claim unfair dismissal from day one. This is likely to bring a wave of claimants to the employment tribunal seeking to enforce their rights. Further, a new Fair Work Agency will be set up to oversee the enforcement employment rights. Its powers will include being able to pursue employment tribunal claims on behalf of workers, even if the individuals do not take legal action themselves.  However, with an already overwhelmed system, it remains an ever-growing question amongst employment practitioners as to how these new rights can be meaningfully enforced. Delays are not usually in anyone's interests, except perhaps the employer's in some cases as the lengthy delays  serve as a deterrent to employees who may have otherwise claimed.

Over the last week, the government has indicated that one of the ways in which it might manage the expected increase in claims would be  to introduce a nominal fee to submit an employment tribunal claim - which seemed a surprising step for a Labour government. Perhaps unsurprisingly, David Lammy has now ruled that out. 

But the problem on the horizon remains - what use are new employment rights, if there's no effective way they can be enforced?