Listings to 2029: Fraser Butlin, Barnard and Menashe on Reimagining Dispute Resolution

In some regions, cases issued in 2026 are now being listed for 2029. A claimant dismissed last week for pregnancy discrimination on a five-figure salary, unrepresented and unfunded, will not have her case heard until her child is in primary school. By then she will have moved on, retrained, perhaps left the labour market altogether; the dispute will have outlived its subject. That is not justice delayed in the rhetorical sense. It is justice abandoned, by attrition.

That is the starting condition for Reimagining Employment Dispute Resolution and Enforcement, the open-access Hart study published this spring by Sarah Fraser Butlin KC, Catherine Barnard and Maayan Menashe with the support of the Employment Lawyers' Association. The diagnosis is broadly familiar to anyone who has set foot in a regional tribunal in the last three years. The prescription is not. Its central intellectual move is to argue that locating employment disputes within a contract-tort-human-rights frame "takes insufficient account of the fundamental emotional and behavioural factors that are in play", and that the model the system should be reaching for is not commercial litigation but family law.

The Diagnosis

The numbers are striking. The authors set them out in Part I: 45,000 individual claims and 450,000 multiple claims, against a tribunal infrastructure conceived in 1964 for "a few thousand cases each year". Resourcing is a structural problem the state will not solve at scale. The Employment Rights Act 2025 is projected to add roughly fifteen per cent more claims into an already over-loaded system. In some regions, listings are now reaching 2029.

The study engages seriously with the doctrinal scaffolding that has grown up around the contract of employment. The Supreme Court in Geys v Societe Generale [2012] UKSC 63 reaffirmed the elective theory of termination, with Lord Hope's now-canonical reluctance to set the law "upon a journey for which I can discern no just purpose". Autoclenz v Belcher [2011] UKSC 41 and Uber BV v Aslam [2021] UKSC 5 pushed contractual analysis through a purposive sieve, treating status as a question of statutory reach rather than form. Each judgment did real work. None of them, the authors argue, reaches the part of the dispute that practitioners actually have to deal with: a person whose identity has been bound up in a job, in colleagues, in a manager, and who has been told, with whatever procedural decoration, that the relationship is over.

The most striking empirical finding is that interviewees repeatedly compared the loss of a job to a divorce. The comparison is not new — Tyler said something similar thirty years ago — but the empirical density behind it here is unusual. Over 200 practitioners surveyed; focus groups; round tables with the Presidents of the Employment Tribunals (Barry Clarke, Susan Walker, Maxine Orr) and the President of the EAT (Lord Fairley). The picture that emerges is one of a system that processes evidence and applies law competently but does not know what to do with feeling.

The Family-Law Reframe

Chapter three is the doctrinal pivot and the part that will provoke the most resistance. The authors do not argue that employment law is family law. They argue that the dispute-resolution architecture developed for family disputes — which has spent three decades absorbing the lesson that adversarial litigation is a poor instrument for relational breakdown — has more to teach the employment system than the civil courts do.

The intellectual lineage is Mnookin and Kornhauser's 1979 article on "bargaining in the shadow of the law": the idea that the primary function of the substantive law in relational disputes is not to impose order from above but to set a framework within which parties can privately order their own affairs. Onto that they layer Tom Tyler's procedural-justice research — that participants' acceptance of an outcome depends on voice, neutrality, trust and dignity more than on the result — and Robbenolt and Sternlight's work on anger as a decision-distorting force in litigation.

From this they draw the proposition that an employment dispute resolution system must absorb emotional cost rather than amplify it. The current system amplifies it almost everywhere: in the grievance procedure that entrenches positions early, in the ET1 that demands legal coherence from people who have a story to tell, in the cross-examination that requires claimants to relive the events of the dispute eighteen months after they happened. The family-law analogy is not sentimental. It is structural: the question is what kind of process you build when you accept that the parties cannot litigate themselves to peace.

The Three Tracks

If the study has a single concrete recommendation that will define how it lands in practice, it is the three-track adjudication proposal. The model is borrowed from the civil courts but tuned to the empirical patterns of tribunal work.

Track 1, for claims worth less than six months' earnings, would be heard online before a judge for no more than three hours, with minimal documentation beyond the ET1 and ET3. Track 2, for claims between six months' and two years' earnings, would run on standard directions, with strict page limits, rigorous case management, mandatory half-day early neutral evaluation after exchange of witness statements, and a costs regime calibrated as a percentage of the value of the claim. Track 3, for claims above two years' earnings or where the claimant elects in, would operate substantially as multi-track civil claims do: full costs, court fees as a percentage of value, designated case-managing judge, mandatory touch points for non-court dispute resolution, and a one-day ENE hearing as a final off-ramp before trial.

The proposal is not a tidy taxonomy. It is a system designed around the proposition that most employment disputes do not need to be litigated to judgment and that the cases which do are not the same cases as those which currently take three days because nobody had the leverage to make them stop. Multi-claimant cases (ten or more) would default to Track 3 with bespoke disclosure and test-claimant rules.

The Other Recommendations

The supporting architecture is as ambitious as the tracking. The formal grievance procedure as a precondition to litigation would go, replaced by an "expression of concern" mechanism in which an HR mediator can step in early. The Acas Code would be rewritten to make explicit that the disciplinary procedure is a last resort. A new Employment Resolution Service would operate as a single point of entry for both employers and employees, providing information, advice, workplace mediation, and triage to the Fair Work Agency, to phone conciliation, or to online mediation depending on complexity.

The ET1 and ET3 would be remodelled with dependent questions and word limits, on the basis that the current form rewards people who already speak law. The contractual jurisdiction limit would rise from £25,000 to £100,000. Tribunal awards would have the same enforcement status as county court judgments. The FWA would be properly resourced to enforce both awards and COT3 settlements. An AI model to convert client narratives into timelines and legal claims is flagged for "careful evaluation".

That recommendation deserves more scrutiny than the framing suggests. Large language models capable of converting a claimant's account into structured legal narrative are already embedded in word processors and email clients; a centrally commissioned ET1-drafting tool arrives late to a market that has moved. The efficiency argument also extends further than the study follows it. If AI can bridge the gap between a claimant's story and a coherent claim form, the same logic applies to the determination itself. AI-assisted judgments would be faster and in some senses more consistent. They would also be constitutionally different: judgment is the exercise of coercive state authority in a named human's hand, publicly accountable and subject to appeal. The democratic legitimacy of that exercise depends on its human character, and the study's own theoretical framework explains why.

Tyler identifies dignity — being treated with human regard, as a person and not a case number — as one of the four pillars of procedural justice, alongside voice, neutrality and trustworthiness. When I raised the widespread adoption of video hearings in English Employment Tribunals with Belgian lawyer colleagues, the reaction was something close to horror: not because remote proceedings are unfamiliar but because they regard the physical space of the courtroom as constitutive of the authority it exercises. At a recent hearing, the judge had to pause proceedings to ask an observer not to take a telephone call — not to treat the hearing as a television programme running in the background. That small incident captures the full argument. A system in which a bystander needs to be reminded that a court is in session has already conceded something about what courts are for. AI-generated judgments would be a larger version of the same concession.

What This Means in Practice

I write this as someone whose practice depends on the system being broken enough to need representation but functional enough to be paid. The reforms proposed here would change both sides of that calculation. Track 2's costs regime would force claimants to absorb litigation risk in ways they currently do not, and would shift counsel's role early in a case from advocacy toward evaluation. A mandatory ENE hearing creates a new market for senior practitioners willing to sit as neutrals and a new tactical layer for those representing parties on either side of it.

The costs proposals have an internal tension the study does not fully resolve. Track 3's full bilateral costs regime draws from the civil courts, not from the family law model that provides the study's own theoretical frame. In family proceedings — financial remedy (FPR r.28.3) and children matters alike — the default is the opposite of CPR Part 44: costs are not ordered between the parties except in conduct cases. Citing family law as the template for humane, relational dispute resolution while importing a civil multi-track costs structure is not internally consistent. The constitutional dimension compounds the difficulty. In R (UNISON) v Lord Chancellor [2017] UKSC 51 the Supreme Court struck down ET fees because they created a real risk of deterring claimants from vindicating legitimate rights — the common law constitutional right of access to courts. An adverse costs exposure does not impose an upfront barrier in the same way, but it carries the same chilling effect for the economically vulnerable claimants who make up much of the ET's caseload. The study's answer — that a costs regime enables CFAs and ATE insurance, improving access for those without means — may prove optimistic: the CFA market for employment claims does not exist at scale, and insurers' appetite for the risk is untested. Both objections deserve a fuller answer than the study provides.

For claimants with claims that are emotionally heavy but financially modest — the largest single category of tribunal work — Track 1's three-hour online model is the most consequential proposal in the study. It would resolve more cases more quickly, but it would also compress the procedural space within which a claimant currently lives with the dispute. Whether that compression is a kindness or a deprivation is the question every practitioner advising a Track 1 candidate would need to answer, and the answer would not always be the same.

The proposal to abolish the formal grievance procedure as a precondition is overdue. The Acas Code uplift survives — and should — but the practice of requiring claimants to grind through a written grievance process before they can litigate has long since stopped functioning as the de-escalation mechanism it was designed to be.

The Quiet Conclusion

Some of these proposals will land. Most will not. The Treasury will not fund a properly resourced ERS. The family-law reframe will offend academics who have spent careers defending the contract-and-rights frame against exactly this kind of incursion. The Employment Rights Act 2025 will arrive into a system that has not been reformed to absorb it.

What the study does — and what makes it worth engaging with even by those who will disagree — is to refuse the convenient fiction that the tribunal system is fundamentally sound and merely under-resourced. Fraser Butlin, Barnard and Menashe argue instead that the system was built to resolve a kind of dispute — the wage claim, the redundancy, the contractual breach — that is no longer the centre of its workload. It now spends most of its time on disputes about identity, dignity, belonging and recognition, and it does so with the tools of contract law.

There is a counterargument worth putting. Employment law has not merely overlaid statute on contract; it has spent decades developing the employment contract as a genuinely sui generis instrument. The implied term of mutual trust and confidence goes well beyond any general contractual duty of co-operation. The purposive approach in Autoclenz and Uber treats status as a question of statutory purpose, not contractual form. None of that, however, answers the study's argument, which is directed at the process rather than the doctrine. The contract may now be relational; the litigation that enforces it remains adversarial.

John Rawls's test for just institutions asks what you would design from behind a veil of ignorance — without knowing in advance what position you would occupy within the system. Applied to employment dispute resolution, the question is unusually clarifying. You know you will be a party to a dispute. You do not know whether you will be employer or employee, whether your claim is worth three months' pay or three years', whether you will have a silk or be filling in your ET1 at a kitchen table at midnight. Nobody, from behind that veil, chooses Track 3's bilateral costs regime as their first preference. A full costs exposure in a jurisdiction where the median claimant cannot fund representation is the Rawlsian hell vision: precisely the design you would refuse if you thought you might be the unrepresented party on the losing side. The thought experiment does not tell you what the right system looks like. But it makes certain choices immediately recognisable as wrong — and the study's costs proposals are among them.

Family law had to learn, slowly and against the resistance of its own practitioners, that you cannot litigate a relationship to peace. Employment law has not yet learned this, and the listings to 2029 are what that looks like.

Table of Authorities

Selected Secondary Sources

• Fraser Butlin KC, S, Barnard, C and Menashe, M, Reimagining Employment Dispute Resolution and Enforcement (Hart, 2026). Open access. The primary source for this article. Empirical study funded by the Employment Lawyers' Association; includes a survey of over 200 practitioners, focus groups and round tables with the Presidents of the Employment Tribunals and the EAT.
• Mnookin, R H and Kornhauser, L, 'Bargaining in the Shadow of the Law: The Role of Divorce Settlements' (1979) 88 Yale Law Journal 950. The foundational theoretical treatment of private ordering in relational dispute resolution; the source of the "shadow of the law" framework invoked in Chapter 3.
• Tyler, T R, Why People Obey the Law (Yale University Press, revised ed, 2006). The empirical basis for the procedural-justice framework — voice, neutrality, trustworthiness and dignity as determinants of compliance — which informs the study's critique of the adversarial model.
• Robbenolt, J K and Sternlight, J R, Psychology for Lawyers: Understanding Human Behavior to Enhance Client Counseling, Negotiation, Mediation, and Litigation (ABA Publishing, 2012). Source of the analysis of anger as a decision-distorting force in settlement and litigation, cited in Chapter 3 of the study.
• Gibbons, M, Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain (Department of Trade and Industry, 2007). The most influential of the earlier reform reports; its ADR emphasis anticipates several of the present study's recommendations.