Is the Employment Tribunal fit for radical change to workers’ rights?

From business chiefs to your everyday worker, all eyes are on the upcoming Employment Bill, a reform that could be seismic for employment rights.

But a question that should be addressed, is whether the Employment Tribunal is fit for this overhaul?

The Employment Rights Bill is predicted to cause a “sea change for employers”. These changes include banning exploitative zero-hour contracts and ending fire and rehire.

However, the most notable change catching the headlines is the “day one” rights, meaning unfair dismissal protection begins on the first day of employment, down from the current two years.

Labour detailed these employment reforms as part of their election manifestos, which was one of the 40 bills revealed in the King’s Speech back in July.

However, as employment lawyers gear up for a busy time advising and preparing clients , the full facts of what the bill looks like has yet to be published by the government.

While we wait for the full details of the Bill, despite what it may look like, it will have a huge effect on the Employment Tribunal, so will it be fit for change?

The issues

Kate Palka, lawyer at The Legal Director noted that the overhaul could “create more employment claims”, as she highlighted that “ironically, Labour has set out an intention to give greater access to Tribunals.”

Currently, the Tribunal already handles a lot of cases. Emma Cocker, senior associate at Lawrence Stephens explained that “we already know that tribunal claims are up by around 7 per cent compared with 2022/23 with over 650,000 open cases.”

The Tribunal, like other courts in the country, has been battling its Covid-19 backlog.

Jessica Bass partner at Oury Clark noted the Tribunal has been “suffering with delays and backlogs” since the pandemic, “particularly in London and the South East”.

Speaking from experience, Martin Pratt, partner at RWK Goodman relayed that many of his cases are listed for trial more than 18 months after the claim was issued. “I had one recent matter where the tribunal took three months to simply acknowledge a claim had been filed.”

Another issue the Tribunal is facing is the shortages of judges. It was reported back in May that some employment tribunals in parts of London are being listed for as far away as 2026, due to the shortage of judges.

Bass stated that “the removal of the two-year qualifying period by the Labour government is likely to increase the number of claimants bringing unfair dismissal cases, which will need one or two days of Tribunal time, depending on complexities.”

Pressure pot

Is there anything being done to get the Tribunal ready? Glenn Hayes, partner at Hill Dickinson explained that there is a “new case management system is being rolled out across various regions, hoping to bring some transparency and efficiency to the process” as he added that “more judges have been recruited and a process is underway to consider what further efficiencies can be made.”

He pointed out that “some regions are arguably ready, with quick turnaround times on applications and Tribunal dates listed within reasonable timescales.” However, “others are simply miles behind,” he added.

Cocker also added that the “current government’s main solution appears to be the digitisation of claims, but it is unclear what further improvements are proposed beyond the existing online platform for submitting claims and liaising with the Tribunal.”

As Pratt pointed out, “because [of the’] struggle with their current caseload, I fear the situation may worsen when having to deal with a whole new set of laws.”

It is expected that if the government holds its manifesto promises in regards to employment rights, there will be a significant spike in claims.

However, as Crowley Woodford, head of Ashurst’s European employment practice, noted, “without serious planning there is a danger that this already dire situation will be worsened leading to increased costs and management time for employers, witnesses…and increases in frustration and distress for those parties locked in litigation.”

Cocker added that the “Tribunals could become overwhelmed with increased claims on top of already long delays” which may result in longer waits to resolve workplace disputes.