ELA plans to revamp ‘creaking’ UK employment tribunal system welcomed

The Employment Lawyers Association has put forward proposals for a major revamp of how employment dispute resolution should work, following a two-year research project into the issues causing delays and bottlenecks in the current system.

Among the major changes to the process are proposals to reform the Acas code of practice and creating a new dispute resolution body, incentivising realistic approaches to cases from parties involved, and making the system more settlement based.

Jon Fisher, employment law expert at Pinsent Masons, said the recommendations were timely given the ongoing delays faced within the current system.

“The employment tribunal system is creaking at the seams, even before the surge in claims we expect to follow the implementation of the Employment Rights Act,” he warned.

“Access to justice is currently very dependent on your location; a complex claim issued in the north of England or in Scotland will likely be heard within 18 months while the same claim issued in the south of England may not be heard for five years.

“Employers are facing both a mounting number of claims and more difficult claimants, often with unrealistic expectations of how much their claim is worth, using AI to bring complex claims and generate huge volumes of correspondence.”

The proposals, published at the ELA’s conference earlier this month, come as the number of outstanding single cases in the UK increased to around 58,000 last year, with wildly different timescales for cases being heard depending on where in the country you are.

The proposals follow two years of research by authors Catherine Barnard and Sarah Fraser Butlin, based on interviews with those impacted by the current system and more than 200 practitioners, and examining best practice in other countries such as Australia.

Acknowledging that issues with the current system have been sparking concern for three decades, the authors warn that doubling or trebling the number of judges and staff would have greater cost implications for the state than it would resolve in addressing case loads, and call for many cases to avoid tribunal entirely – being resolved through alternative dispute processes such as mediation – drawing on the processes in the family law system.

Fisher said the refocus on finding alternative methods to resolve workplace disputes would help relieve the burden on the system – provided it was conducted reasonably.

“While the recommended focus on alternative dispute resolution through the Employment Resolution Service is welcome, this would need to be accompanied by clear guidance for claimants on the value of their claims and penalties for those who take an unreasonable approach,” he said.

“The focus on internal grievance procedures is also important. Currently, many grievances quickly become entrenched disputes and take up a significant amount of time to manage. The Employment Lawyers Association is recommending that the grievance procedure be replaced with a ‘statement of concern’ and a focus on workplace mediation.

“We’ve found that this approach works well, ensuring the internal process focuses on resolving the grievance rather than creating a form of shadow litigation.”