Elouisa Crichton

Ministry of Justice figures show that whistleblowing claims – where individuals say they were forced out of their jobs for voicing concerns about the organisation – in the UK tribunal system grew by 92 per cent between 2015 and 2023.

Anecdotal evidence also points to an increase in other kinds of employment tribunal claims, including those relating to wages, unfair dismissal and discrimination.

Part of this increase may be attributed to greater awareness of employment rights among the UK workforce generally, as well as the seismic disruption to working practices occasioned by the pandemic.

The new Employment Rights Bill proposed by the UK government aims to significantly expand the rights employees in the UK are entitled to, starting from 2026, and is expected to hike Employment Tribunal claim numbers further.

This promises to add further stress to an already creaking employment tribunal system in the UK.

Figures from HMCTS show a growing backlog of employment tribunal cases, with the caseload for single claims in mid-2024 sitting 18 per cent above the prior year, with 37,000 open cases.

The backlog has been criticised by employment law experts for deferring justice for claimants on the one hand, and adding to the costs and uncertainty for employers on the other.

These delays, coupled with the rising cost of tribunal cases and mounting pressure on organisations’ HR and legal teams, as well as their (in many cases) already stretched financial resources, has prompted employers to look at how to reduce the strain on their operations.

For some, principally larger organisations, opportunities exist in leveraging data and technology more effectively to deal with employment law issues.

Most large organisations accumulate significant amounts of historical employment claim data which, when analysed, can allow them to see what kinds of claims have been brought in the past and how these were dealt with.

This data can be used to build settlement strategies and resolution models, and to formulate agreed approaches to certain kinds of claim, which may prove especially useful for organisations that face similar claims on a regular basis.

As well as helping employers to more quickly establish how to proceed with an employment claim, these data-driven models enable organisations to track their claims trends – including how much these are costing them.

These insights help strengthen an organisation’s decision-making capacity to deal with employment law challenges. More importantly, they can help prevent claims being made in the future by identifying issues, setting out learning opportunities and delivering appropriate training or changes to the way the organisation operates.

For some, this data collection and analysis exercise can also reveal important commercial realities – such as the cost of fighting a tribunal claim versus the value of the claim itself – which can often be obscured by circumstances and lead to commercially inefficient decisions.

While this is often understood at a high level, detail is key and data allows organisations to ascertain (and therefore minimise) the cost of the back-and-forth in obtaining and giving instructions on individual claims.

Addressing concerns

Many organisations distrust algorithms and data-driven models for resolving highly sensitive issues such as employment law claims, because they fear models will deliver perverse results for complicated or unusual cases that do not ‘fit’ the algorithm.

However, the capacity to deal with these exceptions and complicating factors is embedded in these specially designed algorithms, which ensures appropriate checks and balances at key decision-making junctures.

Model providers, including law firms who use such systems, still have some work to do reassure organisations that these models offer sufficient flexibility and expert support to accommodate extremely complex claims – for example those involving very senior personnel as co-respondents, senior witnesses, or other high-profile matters.

Similarly, for more ‘routine’ claims, there is no suggestion that individual employment law challenges will not be given the attention they deserve, but rather that the data and technology deployed can help ensure employment law issues are addressed promptly, fairly and consistently.

Model providers also need to provide comfort to organisations that their claim handling systems allow for complete confidentiality of employment tribunal claims. In fact, these systems are designed with confidentiality in mind and use sophisticated online information exchange and management portals that allow for highly selective viewing of information and full confidentiality of all or parts of claims, depending on the requirements of the particular matter.

In practice, this can mean a significant reduction in emails for exchanging information, where risks of misdirection are high and commonly result in mistakes, in favour of portals for document upload and giving and receiving instructions.

Law firms need to show clients that private practice gold standards of client confidentiality are replicated if not exceeded in claim handling tools.

Some large organisations have already begun experimenting with new claim handling systems, with largely positive results – particularly in priority areas of time and cost savings and learning from the data points.

For others who remain to be convinced, assuming there are no imminent quick fixes for the tribunal issues, pressure is mounting on these employers to begin trialling new ways of working to alleviate the burden of dealing with claims.

Elouisa Crichton is a partner at Dentons and Amy Ross-Sercombe is a managing lawyer in Dentons’ Helix Employment Tribunal Service.