22nd September, 2020
Employment Tribunal backlog and alternatives to litigation
The Law Gazette has reported that the Employment Tribunals case backlog currently stands at 45,000 cases with more expected following the economic downfall and a large amount of job losses anticipated following the end of the job retention scheme in October.
This inevitably will place further pressure on the Employment Tribunals and cases in some tribunals are likely to be listed into 2022.
Employers involved in tribunal proceedings need to be prepared for potentially lengthy disputes with some cases already taking over a year to reach a final hearing. The delay to proceedings can place difficulties on employers trying to defend claims, particularly where documents are limited and witnesses are critical to defending claims. Delays in reaching final hearings can mean that key witnesses have left employment and / or memories fade over time, both of which can impact the employer’s case.
With this in mind, whilst employers should always be open to alternatives to litigation and which should be considered throughout a dispute, employers may wish to consider placing greater emphasis on the various alternatives available to parties outside of a final hearing.
Employers will be aware that the Early ACAS Conciliation process has been in place for some time and is a required step for employees to bring a claim, but this process can have advantages in resolving disputes early, particularly where a time delay to proceedings could be costly and disadvantageous to employers.
Secondly, Mediation is an option which may gain popularity. In some cases, the Early ACAS conciliation process is not enough in more complicated cases where the parties feel they need a chance to put their side across. Whilst mediation is not intended to be a court or tribunal process and the idea is to mediate with a view to reaching an agreement, rather than to go through all evidence, it often allows the parties to “have their say” and air differences which is not usually done through the ACAS process. Mediation with an independent third party may be a consideration at any stage of the proceedings and allows the parties to reach an agreement that goes beyond what a Tribunal can determine through a tribunal hearing. This can have benefits for both parties, particularly in cases where an individual is not just looking for a financial outcome.
Judicial mediation can also be used. Judicial mediation involves bringing the parties together for mediation at a private preliminary hearing before a trained Employment Judge who remains neutral and tries to assist the parties in resolving their disputes, which may include remedies which would not be available as an outcome at a tribunal hearing, for example, a reference. Tribunals have tended to list judicial mediation as soon as reasonably practicable to enable cases to be settled at early stages and to avoid costs. For judicial mediation, the Judge will consider whether both parties agree and if it is suitable for judicial mediation. There are criteria that need to be met for judicial mediation to be considered, which usually includes a hearing of no less than 3 days and discrimination.
Finally, Settlement Agreements are becoming increasingly popular. Settlement Agreements are usually (but not always) used by an employer to offer a financial settlement to an employee to terminate their employment, provided that they sign an agreement confirming that they will not bring any claims against their employer. The employee does need to take legal advice on the terms of the Settlement Agreement and the employer is usually expected to pay the legal fees attributed to this but these can be far more cost-effective than litigation.
Settlement Agreements can be beneficial to both parties and contain mutually agreed terms between the parties which are clearly set out. They also outline that the employee waives any and all future claims against the employer that they have or could have, save for some specific reasons relating to pensions or unforeseen medical issues. Like mediation, the parties can agree on terms that would not form part of a remedy at a Tribunal hearing.
We can assist employers in defending disputes and / or seeking ways to reach an early settlement or solution.
If your business is facing any potential employment disputes and would like advice about tribunal process and defending claims or alternative dispute resolutions, please do not hesitate to contact Debbie Coyne.
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