TRIBUNAL REFORM: THE SYSTEM IS BUCKLING
Since this time last year, single outstanding cases in the Employment Tribunal rose by 15,000 to 58,000. The system is buckling.
We know from our own experience that hearings are now regularly being listed 2-4 years in the future, and that even when listed, there is a significant risk that they will be postponed at the very last minute, due to lack of judicial resource. This only leads to further cost, stress and uncertainty for both parties.
Unfortunately, given the predicted increased demands on tribunals (arising from new rights created by the Employment Rights Act 2025), these delays and backlogs are - without significant reform of the current system - only going to get worse.
In response to this crisis, the Employment Lawyers Association (ELA) is now vigorously campaigning for radical proposals to reform the tribunal system. The proposals are based on the product of two years’ research by leading barristers and law professors, which includes evidence based interviews, comparisons with other areas of law (such as Family law) and examining best practice in other jurisdictions such as Ireland, Australia and New Zealand.
Some of the primary proposals include:
Ensuring that wherever possible, disputes between workers and employers stay where they belong (i.e. within the workplace) and are resolved informally (reforming the ACAS code of Practice to encourage informal resolution);
To give information to workers and employers, at an early stage, about how strong their cases are so that they are realistic in approaching settlement (and are not reliant on AI to evaluate their cases);
Once a matter becomes litigated, to encourage settlement meetings and make the system more settlement based (with levers to encourage mediation such as uplifts and negative implications for failure to engage);
Implementing a tiered case management structure i.e.
a. Simple cases will be dealt with online only;
b. Cases of ‘intermediate importance’ will have close Judge management and the case will be done and dusted in 5 days, with the judgment given there and then;
c. The most complex or high value cases, where the worker wants to pursue it, will be subject to early judicial evaluation – where a Judge will tell the worker and employer what parts of the case are likely to succeed and which aren’t. There will be some discussion about costs so that both parties have ‘skin in the game’ and will face cost consequences where appropriate.
In our view these are extremely sensible proposals, particularly the proposal for early judicial evaluation / assessment. Unfortunately AI models are emboldening claimants in a lot of situations to overestimate both their prospects of success and their likely compensation. Judicial intervention would hopefully counter this and result in realistic settlement discussions.
You may have seen some news coverage of the above proposals and again, this is a good thing! – the more focus on this crisis the better, particularly before we enter the ‘new world’ of unfair dismissal rights at the 6-month mark and uncapped compensation!
