Six month Employment Tribunal claim window takes effect for UK employers

A major change to Employment Tribunal rules takes effect today. For the majority of claims arising from today, the time limit for bringing a claim doubles from three months to six months.
For employers, that means workplace disputes can remain live for considerably longer. We’ll speak to employment litigation expert Rebecca Sulley about what that means in practice and what HR teams should be doing in response.
The change comes as research suggests many employers are still not ready for it. People Management reports on a survey of 1,500 HR and business leaders which found just 28% knew about the longer tribunal claim window. Only 7% were aware of all three major changes surveyed, including the shorter qualifying period for unfair dismissal and removal of the compensation cap which take effect in January.
Meanwhile, the tribunal system is already under considerable pressure. HR Review reports the number of open single claims reached a record 70,000 at the end of June, up 51% in a year. New claims were up 28%, while the number being disposed of actually fell by 6%. In the latest quarter alone, tribunals received 14,000 single claims but disposed of just 6,100.
There are concerns that the reforms could add to that pressure, with HR Review reporting warnings of a potential ‘perfect storm’ as greater awareness of employment rights and easier access to legal information make it easier for individuals to identify and pursue claims.
So what does a longer claim window mean for employers in practical terms? It’s a question I put to employment litigation expert Rebecca Sulley:
Rebecca Sulley: “One of the main reasons why it's significant is that potential claims will remain live for much longer than they ever would have done before. It's likely that you're talking about nine months between the act happening and the claim actually landing with this longer period, and that really increases the uncertainty for employers. It means that disputes that they could once be confident in having resolved and weren't going to be subject to a claim actually might still be subject to a claim – it’s just going to take a lot longer to come through the system. So that can have a number of different impacts. It can mean that people's memories fade because it could be nearly a year before they even have to prepare a response to a claim. It, of course, might mean that potential witnesses will have left the business and, also, it means that contemporaneous evidence is going to be even more important. Keeping very good records, making sure there's a way of easily accessing emails and handwritten notes, they're all going to be things that employers need to think about when they're doing everyday grievances, investigations, meetings with employees. So it will make a big difference, this increase.”
Joe Glavina: “Does the longer claim window mean that employers will need to change how they preserve evidence and how they manage potential claims?”
Rebecca Sulley: “Yes, it's certainly something that employers need to be thinking about now. So, there’s couple of strands to this, the first one being documentation. So, we'd encourage people to review their document retention policies and any litigation-hold arrangements they have in place, probably in conjunction with your IT teams, to make sure that they are able to put the relevant holds in place. It also really means that you need to stress to your managers how important it is to take detailed notes of meetings, to put their thought process down on paper, to make sure outcome letters are detailed and will help them when it comes to giving evidence a number of years down the line given that's how long it's taking to actually get to tribunal. It also means you need to think about how to retain documentation such as things like Teams messages, WhatsApp messages, that can auto delete after a certain amount of time. So we would encourage employers to have a chat with their IT teams to look at the art of the possible and what needs to be put in place there. One of the other things that we are talking to employers about is how to monitor potential witnesses to a claim, and the ways in which you might be able to do that, whether that is through your HR systems or in some way putting a tag on that individual so that if they resign, or if they're subject potentially to a redundancy or another kind of exit, that can be flagged to HR because losing witnesses can make a real difference to whether you can successfully defend a claim or not. So identifying them and making sure their evidence is preserved and that they're contactable if we need them in the future as a witness are all key things to look at.”
Joe Glavina: “What should HR teams be doing now in response to those changes?”
Rebecca Sulley: “HR teams should be looking at the policies that are in place, reviewing grievance, disciplinary, sickness absence procedures, just looking at the various different timings in there, and any manager guidance associated with those in terms of forms that managers are meant to fill in. It's a good idea to be making sure that managers are actually taking these notes but also filing them where they should be on the personnel file so they're easy to locate when we need them at a later time. As I've mentioned before, document retention and the record keeping arrangements are important to make sure you've got that longer period of time to retain documents and to prevent auto deletion of emails. Also, considering who will be monitoring and looking after potential claims because there'll be a longer period of time to bring claims. So you may find that ACAS is contacting you six months after the event and we need someone in HR who is familiar with what has happened to these particular individuals. So, making sure that there is a point of contact familiar with resolving ACAS disputes. Also, seeing whether anyone else in the HR team, or line manager, needs additional guidance before that time to ensure that they realise that there is this extension of time. So when you thought you might have been safe from a claim before, you might no longer be.”
So the key point is that the longer claim window changes how long employers need to keep potential disputes in view. HR teams should be reviewing their processes now to make sure records, evidence and potential witnesses can still be accessed if a claim comes months later.
Rebecca is currently working with clients to help them manage the impact of the change. If you would like help with this please do contact Rebecca – her details are on screen for you.