Introduction
Early assessment of defence
Settlement
Early preparation of evidence and active management of case
Comment


Introduction

If an employee files an employment tribunal (ET) claim today, how long would it be before their case is heard and decided by a judge? According to statistics recently released by the Ministry of Justice in response to a written question posted by the opposition, it takes 49 weeks on average – nearly a year – for an employment tribunal case to reach its "first" hearing. (This figure is for the period January to March 2021, which are the most recent statistics available.)

This is significantly longer than it would have been before 2019, when the waiting period was around 28-32 weeks on average. The government says the delays are due to the covid-19 pandemic, but the ET service was struggling with a rise in cases before that – principally because numbers increased when tribunal fees were declared unlawful in July 2017. The chaos caused by the first lockdown in March 2020 exacerbated the problem considerably. As at the end of September 2022 the ET service had an outstanding caseload of 493,000 claims (of which 45,000 were single claims, where there is just one claimant, and 448,000 multiple claims, where many claimants are bringing claims on the same facts).

Notably, these statistics refer to the "first" hearing. It is not completely clear but it is likely this will not always be the final hearing to decide the case – it could also mean any preliminary hearing (PH). All cases, other than the most straightforward (eg, unfair dismissal or wages claims) start with a case management PH to determine the issues and set the timetable for the rest of the proceedings. In these cases, the likely waiting time between the filing of the claim and the final hearing will be significantly longer than 49 weeks. It is not uncommon for parties to attend a final hearing two or three years after the claim was filed – and of course the events referred to in the claim will have taken place earlier than that.

Waiting for a case to come to hearing is stressful and frustrating for claimants but it is also challenging for an employer. To defend the claim, employers need witnesses – the people working for them who were involved in the events referred to in the claim. The longer the period between these events and the final hearing, the higher the chance of the witnesses forgetting relevant facts or moving on to another job. Employers can try to mitigate against this by preparing the witness evidence early and obtaining personal commitments that the witnesses will continue to help after leaving employment. But the former means employers will be incurring high costs early on in the proceedings (which they may want to avoid) and the latter is not totally reliable. Plus, employers still have the ongoing situation where the witnesses – often senior individuals within the business – are facing giving evidence at the final hearing, which can be very stressful even when they are not an individual respondent.

It is possible that, if the proceedings carry on, the claimant may decide not to pursue the claim. But experience indicates that this is quite rare. The more likely scenario is that employers' costs will be higher because the proceedings are dragging on. Case management rarely flows smoothly, and longer proceedings may involve postponements of PHs, delays in dates for key case management tasks such as disclosure and applications to the ET related to these things.

So, what can an employer do when facing a complex employment tribunal claim that is likely to drag on for over a year?

Early assessment of defence

The first thing an employer should do is to consider as early as possible, with legal advice, its position in the claim. If an employer has no good defence to the claims, it may be sensible to opt for alternative resolution (trying to avoid the claim proceeding to a final hearing) sooner rather than later. Employers should keep in mind the most costly stages in proceedings – such as attendance at PHs, document disclosure and witness statements – and try to reach an alternative resolution, such as settlement, before these points.

Another option, which employers do not always like but may be helpful in some circumstances, is to consider conceding some or all of the claim. This would enable the employer to focus on the key defendable elements or minimising any ET awards. It may also assist with settlement in some circumstances.

Settlement

The practicalities of settling a case before it comes to hearing can be done by a settlement agreement (for which the claimant will need to get legal advice) or in a COT3 agreement through an Advisory, Conciliation and Arbitration Service (Acas) conciliation officer.

But achieving that agreement can be done in a variety of ways. For example, if discussion and negotiation with the claimant directly or via Acas is not going well, a mediation may help move things to a conclusion. Sitting in a room (or rooms) with a mediator for a day may be worth it as a means of focusing minds. The ET service usually (where both parties agree) offers a free one-day judicial mediation in cases involving discrimination claims but employers often find, particularly in complex cases where the claimant does not seem to be reasonable in their settlement expectations, that a privately arranged mediation is more effective (if more expensive).

Other alternatives include "early neutral evaluation" where a "neutral" person is appointed to consider both parties' submissions about the case and then give a view on the likely outcome at the hearing. This would only be appropriate in some cases but may be useful in complex and high-value cases where mediation is not considered appropriate.

Early preparation of evidence and active management of case

In many cases and for many reasons, settlement may not be a desirable option for an employer, particularly very early on in the proceedings. If that is the case, when faced with a significant delay before the case comes to hearing, it helps to prepare the evidence early. Being organised on the employer's side as early as possible (in the identification and organisation of witnesses and documents) can help reduce legal costs (as well as help with the early assessment of merits referred to above).

"Active" management of the case can mean many things as the case goes on. For example, in the early stages, when faced with a poorly drafted and unclear claim, an employer can request that the claimant provide additional information to particularise their claim. As the case moves on, the employer can point out – if need be, to the ET – any failings by the claimant to comply with the case management orders. Although this may result in additional costs, the aim would be to try to keep the proceedings on track and make the claimant understand that the employer is ready and willing to defend the claim actively and robustly. If the case continues to drag on and the claimant is reluctant to actively pursue the claim, taking these steps may help reach an alternative resolution that is acceptable to the employer (eg, a "drop hands" settlement where the claimant withdraws in return for an undertaking by the respondent that they will not apply for costs against the claimant).

Comment

It is dismaying at any time to be facing employment tribunal claims but delays of this magnitude are compounding the issues for employers. The ET service is taking steps to try to speed up the process, including appointing legal officers to deal with routine decisions and recruiting new employment judges but, although this is promising news for the future, it will take some time for the existing backlog to be reduced and this will be of little comfort to employers facing claims now. By assessing the prospects of the claim early on, identifying what witnesses will be needed and taking action to secure their evidence, employers can mitigate the risks of long delays. They can also take strategic decisions about pursuing settlement or seeking alternative resolution, in an attempt to draw a line under the claim before the ET proceedings have drawn out to their own, protracted, conclusion.

For further information on this topic please contact Emma Delap at Lewis Silkin by telephone (+44 20 7074 8000​) or email ([email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.