Tackling employment tribunal delays
Kate Potts and Raoul Parekh, January 17, 2019
The Ministry of Justice recently revealed that the average waiting time between a tribunal claim being filed and the hearing reached 207 days in 2018
This is likely due to an increase in tribunal claims (and a related shortage in judges). The abolition of tribunal fees in July 2017 prompted a 130% surge in receipts of single claims, and a 344% increase for multiple claims.
So how can HR practitioners best manage these long delays and periods of uncertainty?
Stay out of the tribunal altogether
Prevention is better than cure. Seasoned HR professionals will have a long list of the 'employment tribunals that never were': fractious workplace disputes they have avoided through judicious intervention rather than judicial resolution. Informal or formal mediation can prevent the need for lawyers entirely, and settlement discussions can happen at any time. Depending on the employer’s risk profile you might wait until an individual has brought a claim before considering settlement as you then have a better idea of the claim and the risks you will face.
Tactics for dealing with delays
Getting your house in order
With some tribunals now listing two-week hearings for 2021 it’s vital to make sure that HR teams keep good records of contentious matters. It can be a nightmare looking back to try to find an email from 12 months ago, so gather key documents and emails immediately after you receive notice of a claim. Don’t wait for the first hearing or until the tribunal orders you to provide the relevant documents.
Key witness co-operation
One common problem faced by employers is that key witnesses move on before claims are heard. So why not make a note in the HR file of all the key witnesses in the matter? Then if any of them decide to leave you can make sure you obtain the information you need from them before their departure. Additionally, if you are signing settlement agreements with the departing employees include detailed co-operation provisions to require the employee to assist in litigation.
Beating the clock
It is not easy for an HR professional to balance spending significant time and cost upfront to get the facts straight and assess the merits of the case against waiting until the work must be done to limit the duplication of work. This balancing exercise is particularly important if you think the case is likely to settle, and you therefore want to avoid spending unnecessary time and costs on defending the claim.
Carrying out an early search for documents before a formal deadline is set will help determine the strength of the case, which informs whether you decide to defend or settle the case. If you do find something unexpected or damaging, a settlement approach before the disclosure deadline approaches is more likely to succeed. Switched-on claimants will suspect that a settlement approach close to the deadline indicates that the employer has found something juicy, leading to a rejected offer as they wait to see what the employer has found.
Make it all about the money
If key stakeholders in the business feel strongly about defending a particular claim it can help focus the mind to draw up a detailed costs estimate of defending the claim, setting out what specific actions need to be taken and when. Once senior people have a clear picture of how much time and cost is involved, fighting a case might not make commercial sense. Of course there will be points of principle or unrealistic claimants that make a fight inevitable.
In a bid to tackle the backlog of cases and related delay the Judicial Appointments Commission is in the process of recruiting up to 54 new full-time tribunal judges, and it has confirmed a further proposal to recruit 50 new fee-paid judges and 300 lay members. In the meantime we hope this provides HR practitioners with a few top tips on managing tribunal claims with long delays.
Kate Potts is an associate and Raoul Parekh is a partner at GQ|Littler