Doubling of tribunal time limits will shift focus to ADR, says lawyer

The government has proposed extending the time limit for bringing employment tribunal claims from three months to six months. The amendment to the Employment Rights Bill was published on 27 November 2024 with an implementation date probably in 2026. While it’s good news for claimants, it is likely to mean an increase in the number of claims overall adding strain to an already burdened employment tribunal system and so, in all probability, a significant uptick in the use of alternative dispute resolution. We’ll speak to an employment lawyer about the types of ADR available and how they operate in practice.

The UK employment tribunal system is currently experiencing significant delays with waiting times for hearings extending up to two years in some regions. That is a concern for both the President of the Employment Tribunals of England and Wales, Judge Barry Clarke and his counterpart in Scotland Judge Susan Walker who have been clear that they see ADR is a vital tool for addressing the growing backlog in the tribunal system. In the most recent Presidential Guidance, published in July last year, and in subsequent tribunal user groups across the country, the message to employment judges has been to explore the use of ADR at every stage of the tribunal process. And our clients are not averse to this. Given the prospect of unresolved disputes dragging on for years in some cases, many now see ADR as an effective way to cut costs and the drain on management time.

A reminder. There are four main types of ADR available in employment disputes: 

Acas Early Conciliation, which is mandatory before lodging a claim and helps parties explore settlement options with the assistance of Acas conciliators.

Judicial Mediation, where an employment judge acts as a neutral mediator to help parties reach an agreement.

Judicial Assessment, where a judge provides an impartial evaluation of the case to encourage settlement; and 

Dispute Resolution Appointments, a relatively new type of ADR, introduced nationally in late 2023 after a 3-year pilot in the West Midlands. In a DRA, an employment judge evaluates the evidence and provides an impartial assessment of each party’s case, including the likelihood of success and potential remedies. It’s particularly aimed at complex cases, such as those involving discrimination or whistleblowing, which typically require extended hearing times. Whilst the trial was viewed as successful and is being rolled out across other regions on the UK, as we’ll hear, the snag is that DRAs come at a late stage in the process when a lot of costs have already been incurred and in many cases settlement has already considered by the parties.

So, let’s hear more on these different types of ADR. Earlier I caught up with Rebecca Sulley who joined me by phone from Birmingham to discuss it. First, judicial mediation:

Rebecca Sulley: “So judicial mediation can be very helpful in the right case. So what we always encourage clients to do before deciding whether to go ahead with mediation is to get a Schedule of Loss from the claimant because that way we can see, firstly, is it a very low figure in which case it might be something you can settle via Acas because, of course, there is a cost for your legal advisor to attend the mediation and there's time out of the business that manages, but also is it so high that actually a mediation is unlikely to be successful such that we might not want to proceed with mediation? So, they're the first factors that we look at. But generally speaking, tribunals are very keen to push judicial mediation. They do typically have quite a high success rate, especially if the claimant is unrepresented. It can be very helpful to have a judge on the call to assist in helping to manage their expectations, but it is certainly worth making sure clients are aware that this is not a hearing where the judge will be giving their views on the prospects and the merits. They are essentially facilitating a conversation with the aim being that you achieve a settlement, but if you have a particularly stubborn claimant it might be that no amount of a judge saying, you know, this is the offer do you want to consider it will be acceptable to them. So, it's certainly something worth considering on cases, but it really depends upon your claim as to how successful it's going to be.”

Joe Glavina: “In your experience, how successful has judicial mediation proved to be? 50% of the cases settling, 75%? Where are we?”

Rebecca Sulley: “I'd say probably between 60% to 75% of cases, in my experience, will settle at mediation or, if not on the day, shortly afterwards. Whereas tribunals used to list them for a full day they are sometimes listing them for half a day in the hope that it focuses the parties’ minds, and also on the basis that the judge will probably know by that time whether it’s going to settle or not. So, they do have a relatively high success rate, but certainly it's deciding the right case to take to mediation that’s the important thing.”

Joe Glavina: “Moving on to DRAs, dispute resolution appointments, the trial in the West Midlands was successful by all accounts and DRAs are being used more widely across the country. What has our experience of them been like?” 

Rebecca Sulley: “In terms of our experience of them, we would say they haven't been particularly helpful at resolving tribunal claims the reason for that being is that they are listed only a couple of weeks before the full hearing itself. So, by that stage you have generally already explored where the settlement is likely. You've also incurred all the costs in preparing the claim. So, it's unlikely that you will get to that stage and then reach a resolution, in our experience. The only real kind of benefit of the DRA is that you have to submit your witness evidence to the tribunal so the judge should have read that and they might be willing to take more of an approach where they intervene in terms of giving views on prospects at that whereas at mediation they don't hear any evidence, and it's very neutral. At a DRA there can be more encouragement by the judge on one side to settle so that, in itself, can be helpful. But realistically, you've often already got to that stage where you know whether or not you're willing to increase your offer if you think you have poor prospects, or whether you just want to hold firm and not make any settlement offers, in which case the DRA is an additional cost that you might not want to have to incur and you might not get a positive result out of it. I've recently had a hearing listed in the Midlands, a full hearing, but we haven't had a DRA listed on that one so it's not clear exactly what approach the tribunal are taking in relation to having those mandatory DRA hearings listed.”

Joe Glavina: “Turning to judicial assessment, Becci, which has been around for quite a long time, of course, and happens at a much earlier stage. Again, same question, what's our experience of that? 

Rebecca Sulley: “So judicial assessment is something that is detailed on the agendas for the preliminary hearing but in my experience, it isn't something that judges raise. It is up for a party to say we'd like a judicial assessment and I've had mixed experiences of this. So, we've had some experience where judges will want the documentation and to have a look and to effectively run a mini-hearing before making an assessment, which in itself incurs additional costs and it might not be particularly helpful, whereas in some cases we've asked for judicial assessment purely on things like the claimant’s Schedule of Loss. So, if a claimant has submitted a very unreasonable Schedule of Loss, it might be that the judge can explain to them that that's unlikely to be something they will achieve if they're successful at hearing, and that can help reduce their expectations somewhat. But in my experience judges are not particularly keen to offer a view at that initial stage, quite simply, because they won't have seen anything other than the claim form and response so that, in itself, isn't something that we're seeing resolving claims.”

Joe Glavina: “Final question, which is about negotiations. So aside from the litigation, and aside from the various alternative dispute resolution procedures you've talked about, the parties might be able to negotiate a settlement. Is that something you're expecting a greater emphasis on going forward after the change to rules?” 

Rebecca Sulley: “I think because the risk of claims is going to be so much higher going forward with your day one rights, with the extension to the periods in which individuals can bring tribunal claims, that there will be a greater emphasis at that early stage for the business to be speaking to those individuals directly, and that might be as a result of an appeal following a dismissal, or a grievance that's raised and we do see quite a lot of individuals who are still employed who are bringing tribunal claims and, to that extent, it is helpful for HR to have some initial discussions with the individual and I'd certainly suggest reaching out for legal assistance in doing that and understanding what are the risks, what are the likely compensation, but it is something that I suspect employers might want to be doing more of, having those direct conversations with the individuals themselves to try and resolve situations, and also to try and think outside the box especially with those individuals who are still employed in bringing claims. Is there something else the employer could offer for them to withdraw their claim, whether that be mediation, a change in roles, a change in managers? So I think there will be a greater emphasis on having negotiations and those discussions early on and I think that's likely to be compounded by the fact that Acas are going to be incredibly busy and it might be that Early Conciliation isn't going to be as successful as it has been because the ACAs officer doesn't have the time to contact the employer and act as a go between. So, it's certainly something that HR professionals might want to look at upskilling themselves on and certainly seeking some advice in relation to.”

The government plans to introduce the extension to the time limit for bringing employment tribunal through an amendment to the Employment Rights Bill. That was published on 27 November 2024 with an implementation date probably in 2026. Last week Becci talked to this programme about the likely impact on UK employers of that change, which is a significant one obviously. That programme is called: ‘Employment tribunal claims limits set to double’ as is available now for viewing from the Out-Law website.

- Link to HRNews programme: ‘Employment tribunal claims limits set to double’