Employment tribunals – is it the calm before the storm?

With Labour having been in power for over three months, Clarke Willmott’s expert employment tribunal litigator Kathryn Walters shares her thoughts on the potential impact of the government’s proposed employment law changes.

According to official statistics there were 410,000 employment tribunal claims ongoing in England and Wales at the end of March this year.

However, should Labour implement its plan 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.

During the period 2013-2017 there was a reduction in employment tribunal litigation as a result of the fees regime. But when employment tribunal fees were abolished (the Supreme Court having ruled in 2017 that tribunal fees were unlawful and unconstitutional), within 12 months there was a 39 per cent increase in claims.

At the start of this year the 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 should prepare for an increase in claims.

As a specialist in employment tribunal litigation, acting for both employers and employees, here are some top tips for dealing with an employment tribunal claim:

* Act promptly – the limitation period in the employment tribunal in most cases is three 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 claims as many 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. Therefore employers should not become complacent if the three-month period expires without receipt of a claim. Be mindful that the tribunal also has discretion to accept claims that have been lodged out of time.

* Take specialist legal advice – don’t be fooled that because of the employment tribunal’s reputation as being less formal than other court systems this means that it is less adversarial or important. Employment tribunals have the power to award significant compensation, to default judgment and to impose 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 employers take specialist legal advice as soon as they are able, to ensure they can make informed decisions and concentrate on doing what they do best – running their business! It is important to note that there are various funding options available.

* Perfect your pleadings – the claim form and defence are key documents in any 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.

* 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.

* 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 or defend a claim, to strategise and to make informed decisions.

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.