That the employment tribunal system is struggling will come as no surprise to those who have used it recently. This has been a concern for some time and a situation we have commented on in a previous Legal Update, with issues such as rising tribunal claims, increasingly complex cases and possibly most concerning – significant waiting times for some.
A BBC article has brought into sharp focus both the business and human cost of employment tribunal delays, highlighting the case of a widow who will be waiting until 2029 for a full hearing and judgement.
Such significant delays are difficult for all parties involved and present challenges for businesses and managers. These may only be exacerbated by forthcoming changes to the law which could see claims rise further.
- Why are tribunal delays a problem for all businesses?
- Is there anything that can be done to help protect your business?
- Is anything being done to alleviate the pressure on the employment tribunal system?
1. Why are tribunal delays a problem for all businesses?
A slow journey through the employment tribunal system is bad news for all businesses – simply put, it makes a hard thing harder and unfortunately if your business is faced with an employment tribunal claim, waiting times are out of your hands. Whilst not all cases will go to a full hearing, for example it may be possible in some circumstances to get a claim struck out or a business may decide they wish to settle a case, for those that are awaiting far flung hearing dates it means that everyone involved is saddled with uncertainty.
This can make it difficult for the business to move forward, affect your plans (for example due to possible financial implications should the business eventually lose the case) and also impact others directly involved such as managers. Not just because managers will often be involved in defending the claim(s) but also on a personal level as employment tribunal cases can be stressful, time consuming and sometimes frustrating. They can also take a particular toll if they involve decisions managers have taken, for example if the fairness of a decision to dismiss is being challenged, even if the business has a strong case.
On a practical level delays can also make it more difficult to defend a case, for example key witnesses may leave the business and be reluctant to give evidence, memories fade or witnesses are less convincing on the day than they would otherwise have been because things simply happened so long ago. As reported in the BBC article, in some extreme situations delays may mean that it is no longer possible to have a fair hearing.
2. Is there anything that can be done to help protect your business?
With forthcoming changes to employment law, most significantly the doubling of time limits to bring employment tribunal claims to six months, the reduction of the qualifying period of service for ordinary unfair dismissal claims and the removal of the cap for the compensatory award for unfair dismissal the pressure on the employment tribunal system looks like it is only going to grow.
This makes it more important than ever for businesses to:
- Keep accurate and appropriate records to evidence compliance with the law
- Take preventative measures to reduce the likelihood of issues arising, for example have clear policies and procedures in place and clear communication strategies for areas such as discrimination and harassment, expected standards of conduct and performance
- Seek expert advice on HR matters before acting so you have the information you need to make decisions for your business
3. Is anything being done to alleviate the pressure on the employment tribunal system?
Some steps are being taken, such as a recruitment drive for judges to help alleviate some of the pressure and maximising sitting days.
However, the Employment Lawyers Association is calling for far reaching changes with compulsory mediation for all claims and dividing the tribunal into three ‘tracks’ based on the value of the dispute. They are suggesting that a ‘simple claim low-value track’ (less than £20,000) should be handled by a legal officer and only involve a judge if required, with no fees involved.
Whether such calls will gain any traction remains to be seen, for now it will be important for businesses to focus on taking appropriate steps to reduce the likelihood of avoidable employment tribunal claims arising.
Remember, we are here to help, so please do get in touch if you have a HR matter you would like assistance with.