Employment tribunal reforms – the future is digital

From the latest data released by the government, there were 18,000 claims received by employment tribunals in Q2 2022/2023 and an outstanding caseload of 493,000 at the end of that period.

Although recent recruitment of new employment judges has begun to have a positive impact on the backlog, many tribunal regions are still struggling to catch up – and multi-day cases are commonly not being listed for final hearing until 2024. Delays such as this are not a good advert for ‘access to justice’ and do not help those bringing claims, nor the businesses defending them.

Long delays make it much harder for witnesses to accurately recall events that, by the time of a final hearing, may have happened almost two years ago; they also cause unnecessary cost and uncertainty for all involved.

Therefore, the most recent note on an ongoing project to update employment tribunal case management technology hasn’t come a moment too soon.

Several changes have already been made to digitalise the employment tribunal process, including the increased use of video hearings for preliminary and final hearings in recent years, particularly since the pandemic. The latest digitalisation plans involve:

• The utilisation of an effective digital portal for all aspects of case management – judges, representatives, litigants in person and ACAS will have access to digitally stored tribunal documents, so that there will no longer be a need for paper files.
• Although ET claim forms and ET3 responses are already lodged online, the new portal system will allow parties to view the progress of their case or withdraw it digitally.
• Applications for orders during the proceedings, e.g., regarding non-compliance by another party, will be made online and sent to the other side automatically by email
• Judges will review applications digitally and make their decisions online, unless a hearing is required to consider evidence.
• Digital trial bundles lodged via the portal will replace their paper equivalent.
• The new system is currently being tested in the Glasgow, Leeds, Nottingham and Bristol tribunal regions, with a roll-out of the portal system to professional representatives expected in the next month and the service being phased into all regions in England and Wales from Autumn 2023.

Time will tell just how much of an impact this new system will have on employment tribunal efficiency and access to justice. Doubtless there will be teething problems, as with any new technology, but for now it must be viewed with genuine hope and optimism that it will make a real difference to the backlogs and navigation of the tribunal system. We will keep you updated on any significant developments and issues once we have had a proper chance to experience the new system in action.

Reducing the risk of a successful employment tribunal claim: top tips

For the time being, this is a good opportunity to remind ourselves of some of the ways to reduce the risk of a claim being brought to an employment tribunal by employees and/or reduce the risk of a successful claim if it has been brought. Below are our top tips for you as an employer, to bear in mind:

• Deal with issues or complaints raised by employees as quickly and efficiently as possible.
• Ensure you have the right policies and procedures in place to suit your needs and review them regularly. As a starting point, all businesses should ideally have in place a thorough disciplinary and grievance procedure to be duly followed in all applicable situations.
• Take training seriously and ensure employees are provided with the resources they need to facilitate training. For many claims, providing employees with regular and effective training, especially in equality, diversity and inclusion, can act as a potential defence for an employer at an employment tribunal.
• Keep proper and accurate records of all meetings with employees as this will be useful in the event of any dispute.
• If in doubt, contact an employment lawyer for advice.

The potential risks of not getting it right

Compensation awarded by an employment tribunal once a claim has been successful very much depends on the type and nature of the claim. For claims that can be compensated with an injury to feelings award – for example discrimination claims and whistleblowing or trade union detriment claims, damages are potentially uncapped.

In 2021/22 the highest award made for a race discrimination claim was £228,000. Back in 2020, a whopping £4.7m was awarded to an employee in a disability discrimination case.

Needless to say, it is essential that complaints and accusations surrounding any sort of discrimination are taken seriously and that your business has the right systems in place to handle such complaints before they are taken to an employment tribunal.