New research from law firm Birketts has revealed that care sector employers are having to deal with a significantly higher number of disciplinaries and grievances than other sectors.
Employment lawyers at Birketts warn the number of employment tribunal cases in the care sector could also increase as a result of measures in the Employment Rights Bill, at a time when it will also be grappling with changes to immigration rules.
The Birketts view: Employment tribunals in the care sector impact report 2025, which surveyed HR professionals in businesses in England and Wales over a two-year period, found that on average, respondents from the care sector reported 53 disciplinary matters over the preceding 24 months, compared with an average of 37 across all sectors.
Grievances were also significantly higher in care sector businesses (29% higher) when compared with all sectors, with respondents indicating that managing grievances was the area in which they thought line managers needed most support.
On average, care organisations had received 39 employment tribunal claims in the previous two years, which is broadly in line with the average of 40 across all sectors.
The research shows that among care organisations, 60% of HR professionals surveyed had dealt with between 26-50 employment tribunal claims in the previous 24 months.
The average amount of time spent by HR professionals dealing with such claims was 4.66 weeks over the two-year period, very slightly below the average of 4.78 weeks across all sectors.
Of those who had elected not to engage in the Acas early conciliation process, 54% said
it was because they thought it would either not resolve the issue or be a waste of time
(compared with 56% across all sectors), with 36% indicating that it was because they were
not willing to negotiate with the claimant (32% across all sectors).
In contrast, settlement via Acas once the employment tribunal process had started, was reported by 31% of care sector respondents, the most frequent conclusion to claims brought against the business once they had commenced.
Holiday pay claims featured more highly in the care sector compared with the average number
of holiday pay claims across all sectors.
Analysis of the types of employment tribunal claims handled by care businesses in England and Wales in the previous two years shows that those most commonly reported were:
unfair dismissal, including constructive dismissal (27%); disability discrimination (23%); wrongful dismissal (20%); and holiday pay (20%).
This suggests that the high staff turnover rate within the sector – alongside a legacy of holiday pay claims brought by care sector workers following recent case law developments – has affected employment tribunal rates.
A 2022 Supreme Court ruling on holiday pay entitlements for part-year workers (Harpur Trust v Brazel) may also have led to a potential artificial ‘bump’ in claims, according to Birketts.
Only 16% of respondents from the care sector reported any cases being struck out by the employment tribunal, compared with 23% of respondents across all sectors.
Commenting on the findings, Catherine Johnson, Partner in Birketts’ Employment Team, said:
“The care sector is renowned for having high staff turnover, and employers in the sector often face claims on multiple legal grounds because their staff do not meet the two-year minimum service requirement for an ordinary unfair dismissal claim and instead pursue ‘automatic’ unfair dismissal claims.
“This includes whistleblowing, as well as discrimination and/or victimisation, which do not require a minimum length of service.
However, unlike ordinary unfair dismissal claims, these claims attract unlimited compensation, are complex to handle, and will often require a preliminary hearing to determine issues, such as whether any aspects of the claim are out of time.
It is also common for claimants in the care sector to name individual managers as respondents, along with their employer, adding to the complexity. These factors can considerably increase the costs of defending claims.
“Because of this, the forthcoming Employment Rights Bill – which will remove the two-year minimum service requirement for bringing an unfair dismissal claim – could, in some respects, be regarded as a mixed blessing for care sector employers. While the number of claims is likely to increase, some of these should be more ‘straightforward’ to manage in the future.”
“These challenges, combined with those posed by the recently announced immigration crackdown on care workers, paint a bleak picture for the sector. Employers should therefore act now to get their houses in order before these new measures take effect.”
On disciplinaries and grievances:
“Employment claims pose huge costs for businesses – both financially and from a resources perspective. While managers may view grievances and disciplinaries as inconvenient, they must take care not to rush their investigations as this could increase the risk of claims being successful.
This is where good manager training in investigations and disciplinaries could make all the difference.
“While the courts and tribunals are still grappling with a backlog in employment claims and new workplace rights on the horizon, including a ‘day one’ right to claim unfair dismissal, employers in the care sector would do well to ensure they are ahead of the curve and tackle any potential claims early on to avoid costly tribunals.”
The most common reason cited by respondents from care businesses for settling
employment tribunal claims was witness credibility (36%), with the cost of defending
claims a close second (34%). Settlement of claims in the sector often comes late in the
process, most commonly the day before (25%) or during the hearing itself (28%).
Birketts advises employers to implement clear workplace policies, provide quality training to line managers and maintain open lines of communications between management and employees to avoid an escalation of issues.
Last minute settlements
The study showed that on average in the past 24 months, the majority of respondents (59%) reported settling employment tribunal claims before the final hearing, slightly lower than the average across all sectors (62%). A quarter (25%) of HR professionals surveyed reported that employment tribunal claims were settled the day before the hearing was due to commence.
Birketts says earlier settlement, particularly using Acas early conciliation, will often save time and reduce costs for employers facing a tribunal claim, although this will not be appropriate to all claims. For instance, care sector claimants are typically unrepresented, which can make it difficult to secure a sensible settlement at an early stage in the process (or at all).
