Employment tribunals – Is it the calm before the storm and our top tips
With the Labour Government having now been in situ for a few months, Clarke Willmott’s expert employment tribunal litigator Kathryn Walters shares her thoughts on the potential impact of Labour’s proposed employment law changes on the future of employment tribunal litigation.
“The employment tribunal statistics indicated that at the end of March 2024 the open caseload of the employment tribunal in England and Wales stood at 410,000 claims. However, should Labour implement their proposal to make unfair dismissal a day one right for all employees, this would significantly increase the pool of potential claimants, and in turn the volume of litigation.
“You may remember that during the period 2013 – 2017 there was a reduction in employment tribunal litigation as a result of the fees regime. However, when employment tribunal fees were was abolished (the Supreme Court having ruled in 2017 that Tribunal fees were unlawful and unconstitutional), within 12 months there was a 39% increase in employment tribunal claims. At the start of 2024 the former conservative government was proposing the reintroduction of a new fee structure in the employment tribunal (many employers hoping that this would discourage would-be claimants). However, with the current Labour Government it is now less certain if this proposal will come to fruition and if Labour’s proposals regarding unfair dismissal rights are enacted, employers may be advised to prepare for an increase in employment tribunal claims.”
As a specialist in employment tribunal litigation, acting for both employers and employees, Kathryn has shared below some of her top tips for dealing with an employment tribunal claim:
(i) Act promptly – the limitation period in the employment tribunal in most cases is 3 months. While this means that claimants will need to act quickly to ensure that their claims are not time-barred, employers must be mindful of the fact that the limitation deadline does not always relate to the employee’s termination date. In fact, termination of employment is not a pre-requisite for all employment tribunal claims as many claims can be brought while employees remain in employment. In addition, even where there is a termination date, for some claims the start of the limitation deadline can actually post-date the termination date. Consequently, employers should not become complacent if the 3-month period expires without receipt of a claim. Be mindful that the employment tribunal also has discretion to accept claims that have been lodged out of time.
(ii) Take specialist legal advice – do not be fooled that because of the employment tribunal’s reputation as being less formal than other court systems that this means that it is less adversarial or important. employment tribunals have the power to award significant compensation; default judgment; and penalties for non-compliance. Do not undermine this process because this could be extremely costly and could cause significant reputational damage for employers. We recommend taking specialist legal advice as soon as you are able, to ensure that you can make informed decisions. We are experts in this field so let us help you while you concentrate on doing what you do best – running your business! There are various funding options available that we can discuss with you.
(iii) Perfect your pleadings – the claim form and defence are key documents in any employment tribunal claim. You should not under-estimate the importance of these documents, which we always recommend are prepared with the benefit of specialist legal advice to ensure you have the best chance of success.
(iv) Be disclosure savvy – disclosure is one, if not the, most important stages of litigation. There is an ongoing duty of disclosure and it is vital that parties comply with their disclosure obligations at all times. Never destroy disclosable evidence and always ensure that a comprehensive search is undertaken.
(v) Prepare, prepare, prepare – be it dealing with pleadings, disclosure, witness statements or hearings, preparation is key. Litigation is by its very nature a stressful process, but with appropriate preparation and advice you will ensure that you put yourself in the best place to bring / defend a claim; to strategize; and make informed decisions.
Next steps
If you have any questions or should you need any assistance with employment tribunal litigation Kathryn would be delighted to assist. Kathryn is renowned for providing commercial, no-nonsense advice. Please reach out for a chat to discuss the various support packages that she can offer to help you navigate your way through an employment tribunal claim.
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