We will likely see increased claims, adding to the backlog already within the system. In 2023/24, open employment tribunal cases increased by 3% to 653,000.
Solutions
Labour’s primary solution to combat the strain appears to be digitising claims. However, the Conservatives already modernised and digitised the tribunal process by introducing the ‘MyHMCTS’ system for submitting claims and responses and corresponding with the tribunal.
Labour intends to issue ‘best practice’ guidance for employers concerning workers’ rights. It believes this will reduce the number of claims and relieve pressure on the system. However, this is likely to have minimal effect.
The Conservative government recently consulted on re-introducing fees for bringing tribunal claims to help with the burden of costs. It is unlikely that Labour will proceed with this plan to introduce fees. Still, it has no other significant proposals to mitigate the strain on the system or improve tribunal funding.
Labour’s other key proposal is to set up a new state enforcement body (likely to be called the Fair Work Agency) to enforce workers’ rights, with powers to fine employers that break the law. Moving away from individual enforcement via the tribunal process towards state enforcement via the new Fair Work agency could reduce claims. However, the new agency’s remit remains unclear. It may be aimed chiefly at exploitative practices that do not tend to result in tribunal claims.
How should you deal with delays?
Witness evidence
When a claim reaches a final hearing, key witnesses may no longer be employed. Remember, if Labour gives employees ‘day one rights’, it will make them less risk-averse to moving jobs. This could leave you with significant gaps in your witness evidence, reducing your chance of successfully defending the claim. This could be overcome by preparing a witness statement at an early stage after receipt of a claim, ensuring that this is agreed upon, signed and dated by the witness.
If the witness has already left the business and is refusing to attend the hearing, apply for a witness order, which, if granted, would compel the witness to give evidence.
Even if a witness statement is prepared and signed, this does not require the witness to attend the hearing. If the witness later left the business and refused to participate, the tribunal would unlikely give much, if any, weight to their statement alone. Witness orders can also be problematic. The witness is not attending by choice, which may result in a hostile witness, and their evidence may be unhelpful.
It is best if the witness still works for you and agrees to give evidence. However, delays will affect the witness’s ability to recall events. Preparing a witness statement early in the proceedings will reduce the impact of the delays. The witness will still need to answer questions at the final hearing and may struggle.
Increase in managers’ time and legal fees
Delays often lead to more work for your legal representatives. This includes re-familiarising themselves with the details of the claim after a lengthy gap and increased correspondence between the parties and tribunal, increasing fees.
Pressure on the tribunal service will likely result in more hearings being vacated at short notice, usually because of a lack of judicial availability, as tribunals intentionally ‘overbook’ hearings, expecting many to settle. Like airlines, sometimes they get it wrong.
This will increase legal fees as the postponement often happens at short notice when you have already incurred the cost of preparing for and attending the hearing. You will then have to pay again when the hearing is relisted (often months after the original date).
Delays also mean increased managerial, Human Resources, and in-house legal time spent assisting with a claim at a higher cost to your business.
An uptick in Alternative Dispute Resolution (ADR)?
We may see more ADR if claim numbers increase. There are currently four types of ADR available in employment disputes:
- Acas early conciliation
- Judicial mediation
- Judicial assessment
- Dispute resolution appointments
Dispute resolution appointments are a relatively new concept. They were rolled out to all employment tribunals in late 2023, having been piloted for three years in the West Midlands region.
A dispute resolution appointment involves an employment judge giving each party an evaluation of their chances of success and possible remedy outcomes whilst being impartial. It is generally listed for cases with a final hearing of six days or more. It is the only type of compulsory ADR. It could, therefore, be helpful for employers in cases where an employee is reluctant to engage in settlement discussions or has unreasonable settlement expectations.
We have yet to see these appointments listed routinely. Still, perhaps tribunals will begin to use them more if claims significantly increase, possibly with a widening of the circumstances in which they will be scheduled.
