Employment lawyers now predict that unfair dismissal claims lodged this year won’t go to a full court until 2031 — a consequence of the backlog of up to 72,000 cases in the Employment Tribunal system. Meanwhile, the employees and organisations are left with unresolved issues and the stress and disruption that brings to whole teams and operations.
There’s been an ET backlog for years but there’s been a recent surge, particularly when it comes to more complex discrimination and whistleblower cases that require longer periods of court time. The real problem, though, is believed to be the increased use of AI by claimants without professional legal representation. Using AI tools, it’s said, leads to much larger lists of claims and evidence, along with potential AI ‘hallucinations’ of what can be claimed for, every piece of which needs to be explored and responded to.
In response, the Employment Lawyers Association is calling for a form of triage body to save the system and prevent so many cases reaching the tribunal stage: also using AI as a means of evaluating claims by complexity and validity.
Beyond the headline issues of the backlog, the reality for employers is that people are becoming more willing to turn to law, and better equipped to use technologies that both encourage them to make claims and add to the difficulty and range of what has to be dealt with. Whatever systems are now adopted, the genie of AI is now out of the bottle, along with the wider cultural shift towards more awareness and sensitivity towards individual rights and what might constitute poor behaviour and discrimination.
Employers need to be thinking about what they need to do to step outside the negative cycle. Not so much worrying about the detail of how AI is going to be used and how, but by building trust and confidence as an employer. Good relationships and good systems, informal and formal, mean far less chance of grievances and disputes ever reaching the stage where tribunals are even considered as an option. Neither side rarely ever wants them.
The foundation to this is a culture focused on building and preserving psychological safety: the kind of workplace where employees know their issues will be listened to and dealt with in a constructive way. They can speak up and have an open conversation without fear of repercussions for their reputation and their career.
The principle has to be backed up by a pro-active strategy and close attention to practice within teams. This can be done by using a survey tool like the Psychological Safety Index to anonymously gather perspectives and experiences; following up with open discussion of behaviours that may have caused problems in the past and how open conversations and taking measured risks can build trust, along with ideas for building a stronger sense of safety — backed up by a follow-up use of the PSI tool to check on the impact of the training and commitment.
For the more serious and complex cases of conflict, there need to be a demonstrable commitment to the highest standard of workplace investigations. Even if senior managers are brought in from a different department, with no association with the member of staff involved, there are always going to be loyalties and sympathies that cloud decision-making. Investigations run with internal resources tend to be slow, relying on the availability of senior staff, which can prolong anxieties and act as a barrier to victims (not wanting to extend the experience or after a time, even participate).
There are many risks associated with mishandling: the potential for investigation conclusions to be challenged; costs from the need for extensive management time; cases that keep running over long periods, and knock-on effects for staff morale, relationships and the work environment for the long-term. Investigations need to be formal in terms of how they are organised, carried out and reported on.
Across levels of staff there need to be resources of ‘Conversational Integrity’ the ability to have those all-important honest — and sometimes difficult — conversations. That means making sure people are listening to each other, are self-aware, curious and conscious of their impact on others; the kinds of conversation skills that equip us to be resilient and adaptable, to appreciate the benefits of different views, different people, and see what’s challenge and innovation rather than dysfunction.
