If you ask an average person on the street what they think justice means, many will say it is about fairness and being treated in accordance with the law. In the context of employment rights, an individual who believes in fairness and the law might have to venture on a journey to find justice. This journey includes many obstacles.
First, you must somehow learn that the unfairness which you experience is in fact a justiciable matter. Last year, only 22.3 per cent of all employees were trade union members.1Trade unions: members and relations with the government, House of Lords Library, 29 June 2023.
For those without means, knowing your rights at work therefore requires good fortune or finding answers using the internet, Chat GBT or social media groups. You must, however, learn about your rights in a period of no more than three months (the time limit for most employment claims) or you will lose your opportunity for justice just at the moment your journey begins. The Employment Legal Advice Network
(ELAN) hears daily of cases where workers didn’t know about their rights and missed the deadline to bring claims.
Armed with your knowledge, you must then liaise with Acas
(the Advisory, Conciliation and Arbitration Service), issue a form ET1
and finally, many months later (often more than a year), attend the employment tribunal in your search for justice. ELAN hears from many workers who feel overwhelmed by the process or who simply lack the skills to navigate the Acas and employment tribunal processes. They resign from their access to justice journey.
There were 32,000 single claim cases and 438,000 multiple claim cases outstanding at the end of September 2023.2Tribunal statistics quarterly: July to September 2023, Ministry of Justice, 14 December 2023.
Each one of these numbers is a person still waiting for their moment in the tribunal, still seeking justice and believing in fairness and the law. So, are those who make it this far the lucky ones? The lady chief justice, Baroness Carr, has stated that her ambition includes ‘the reduction of backlogs, the improvement of timeliness, and the maintenance of quality.’3Oral evidence: work of the lady chief justice, HC 466, Justice Committee, 16 January 2024.
She wants to ‘emphasise the importance of a well-functioning society and a well-functioning justice system’.4Ibid.
With backlogs, delays and crumbling courtrooms, there is a great deal that needs to be done to achieve this ambition. However, there is one critical area that needs attention when looking at access to justice from the perspective of a tribunal user. That is the issue of enforcement.
The journey of justice should not stop at the tribunal exit, and yet ELAN members have anecdotal evidence suggesting that approximately half of the cases brought by litigants in person, where the employer is also not represented, end with the employer failing to pay the financial award. These individuals face a yet further complex process in the county court (or the penalty enforcement scheme
) in order to achieve justice and fairness. Many employers know that the workers will simply give up.
Anecdotal evidence is not enough to build a strategy for improving access to justice, so hard data is needed. What is the scale of the problem? How much is being lost in the system in this way? What could be done to improve the efficiency of a ‘well-functioning justice system’? One solution posed at the Civil Justice Council Forum in November 2023 by ELAN
was to introduce an automatic text/email-based system with a simple question, much like those used following NHS appointments, that asks how you found the user experience. The text might say: ‘Have you received payment of the compensation awarded in judgment X? Y or N.’ This data could provide real insight into what needs to change in order for workers to be able to obtain justice through the tribunals. Without this information, how can we promise the public an idea of fairness and how can we achieve the lady chief justice’s vision of quality?