NEWSPress release - 1 March 2021
New data compiled by GQ|Littler is shedding light on the true impact Covid-19 is having on the resolution of workplace-related complaints at the WRC. Unfortunately, despite the very best efforts of the WRC, the figures show that the impact has been dramatic, with a six-month backlog of cases likely to have already developed.
The knock-on effect of such a backlog is that delays inevitably arise. The reasons for these delays are entirely understandable, but to date that sense of delay has been one of perception, rather than one supported by data. Based on the data compiled, it now looks likely that the parties to a complaint should expect more than a year to pass before that complaint is resolved.
Upward trajectory in number of WRC determinations pre-COVID
According to the WRC’s 2019 Annual Report, a record number of complaint applications were received in 2019 – 8,309 in total. This represented an increase of over 7% in 2018, and 13% in 2017.
Based on WRC historical data, approximately 35% of complaints typically result in a WRC determination - i.e. a decision is made by the WRC, and that decision is uploaded to the WRC website.
In ordinary times, given this upward trajectory of complaints, one would expect that the number of WRC determinations would increase from 2019 to 2020. However, as we are all too aware, 2020 was far from an ordinary year.
Impact of COVID-19 on number of WRC determinations
The WRC has yet to release its annual report for 2020, and so precise statistics regarding the impact of COVID-19 have not yet been made available. However, according to the database of determinations on the WRC’s website, instead of determinations increasing from 2019 levels, the total number of WRC determinations has dropped sharply.
In fact, as illustrated by the tables below, there has been a decrease of over 48% on a year-on-year basis in 2020, and by as much as 82% in Q4 of 2020 (likely reflecting the reimposition of Level 5 restrictions countrywide in October).
Of course, it’s unsurprising that COVID-19 has had such a profound impact on the WRC’s ability to resolve complaints. The WRC adjudication process was no more immune than any other sector. In fact, the notion of a several people sitting together in close proximity in a confined hearing room has now become unthinkable.
It is entirely to the WRC’s credit that it has been able to adapt and evolve its adjudication process to keep matters moving in the midst of unprecedented upheaval. It is easy to forget that this time last year remote hearings were essentially unheard of.
In many respects, the more remarkable statistic is not the decrease in the number of determinations, but the fact that the WRC was able to issue the 1497 determinations that it did in 2020, despite the impact of the pandemic.
Effect of a reduction in WRC determinations
However, while recognising the undoubted progress that has been made, one cannot also ignore the stark reality. In tangible terms, a 48% year-on-year reduction in the number of determinations equates to more than 1350 individual cases that would otherwise have been resolved by now, which remain to be determined.
"It is, of course, possible that a decline in the number of determinations can be explained by other factors. For example, it is possible that there has been a substantial increase in the number of complaints that have been resolved without recourse to a WRC determination (e.g. through mediation) or there is a large number of cases that have been decided but whose decisions have yet to be uploaded. However, given the number of determinations involved, these factors are unlikely to explain the sheer scale of decline that the data reflects."
However, the more plausible outcome is that a backlog of cases has built up in the system. A 48% annual decrease in the number of determinations effectively equates to a backlog of six months’ work for the WRC. This backlog is continuing to build day by day as lockdown restrictions persist. For example, if the level of determinations during Q1 of 2021 remains at the same level as it did in Q4 of 2020 (and there is every reason to believe that it will, given the current lockdown restrictions) then this backlog will likely increase by a further 500-600 cases in this quarter alone.
Potential legacy of COVID-19 on the resolution of workplace disputes
There is no reason to suggest that the number of complaints received by the WRC is going to decrease into the future – indeed, many believe that the number of complaints will surge as a result of the pandemic. Similarly, there is no reason to believe that the proportion of those complaints that proceed to adjudication will significantly decrease.
The WRC’s 2019 Annual Report noted that the median time for a decision to issue was “just over 8 months from the date of receipt of the complaint to the decision issuing”. However, where a backlog builds up, this is likely to lengthen as new complaints take their place at the end of an already crowded queue.
Assuming an eight-month median time to a decision issuing prior to the pandemic, and an additional six-month backlog in cases arising as a result of the pandemic, then it is most likely that the median time for a decision to issue is now already exceeding one year from the date of receipt of a new complaint. This aligns with the anecdotal experience of practitioners on the ground and, unfortunately, will only increase over time as the backlog builds.
In short, unless substantial additional resources are provided to the WRC to work through this backlog now, then one of the most long-lasting impacts of the pandemic on the work of the WRC in the future may well prove to be the length of time that it takes for complaints to be resolved. Without such an intervention, and without any fault on the part of the WRC, we may unfortunately see a return to the types of delays that, in 2015, the WRC was specifically set up to address.
GQ|Littler is a leading specialist law firm for employers in the UK and Ireland. Offering risk-based contentious and non-contentious advice, our legal service includes employment, immigration, data privacy and employee tax and incentives. Our client base spans a wide range of sectors including financial services, technology, healthcare, professional services and luxury goods, in the UK and internationally. GQ|Littler is recognised as a leader in its field by both Chambers & Partners and Legal 500, which describes the firm as an “excellent team with strength and depth in every aspect.” For more information, visit www.gqlittler.com.
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