Employment tribunal delays demand early strategic intervention

I recently issued a claim in the Employment Tribunal on behalf of a client. Despite the prompt service of the Notice of Claim, the earliest available Preliminary Hearing was 18 months away. More difficult still was explaining that the Preliminary Hearing would merely timetable the full merits hearing, which itself was unlikely to be listed for another two years (at least).

The growing backlog of claims in the Employment Tribunal is familiar to all employment lawyers. With further anticipated pressure arising from the lifting of the cap on compensation and the reduced qualification period for unfair dismissal claims taking effect from January 2027, delays are only likely to worsen.

A claim issued today may not be substantively determined for three to four years. In practice, this means that an individual who is out of work, or facing imminent dismissal, cannot rely on the Tribunal as a source of timely remedy. And while prolonged litigation is rarely desirable for employers, the removal of any immediate hearing date significantly weakens the incentive to settle.

Acting for employees, this means we need to be more proactive at an early stage and prior to termination, to engage with the employer to either resolve our client’s concerns without the relationship breaking down, or where that is unavoidable, to negotiate an exit on the best terms possible without reliance on litigation. As long as employment continues, so too does the employer’s exposure: the duties not to victimise an employee who has carried out a protected act, made a protected disclosure, or asserted statutory rights remain active; and where the employee has health issues—as is often the case following discriminatory conduct or a gradual breakdown in relations—employers may be under ongoing obligations under the Equality Act 2010 that can be complex to manage. In these circumstances, a negotiated exit provides employers with a controlled, commercially sound outcome, and for the individual it can create a supported transition to their next role, a degree of financial stability, and the opportunity to draw a line under the situation. It also allows both sides to shape the narrative around the departure.

Once the relationship ends, the landscape changes markedly. There is no ongoing workplace management, no (or very limited) ongoing liability, and far less operational pressure. Where the full hearing is years away, it ceases to be a pressing business issue, and the incentive for early settlement reduces. Because individuals find it difficult to raise concerns while still employed and because many are reluctant to believe that dismissal is likely until it happens, it was not uncommon for our initial engagement to only be once matters had crystallised. 

As employees increasingly appreciate the limitations of the Tribunal system, and that they are in a materially stronger position when they seek advice at an earlier stage, we are advising on ‘live’ circumstances before positions have become entrenched where we can make a meaningful impact on the outcome.

For advisers to operate effectively in these dynamics, we must be strategic, agile and deeply attuned to how the law operates in real workplace environments. For those acting for employees, this means moving beyond a reactive, litigation‑driven model and instead often working behind the scenes, helping clients articulate effectively their concerns to maximise positive engagement from their employer. An aggressive threat of litigation alone is increasingly ineffective; a more nuanced and tailored approach is required to influence employers’ decisions before they are taken. For those acting for employers, it requires advice that is responsive to shifting legal exposure. Where employees are well‑represented and articulate their concerns clearly, dismissal decisions become more complex, and advisers must navigate the nuanced liabilities arising from those representations.

Positive engagement by both parties before claims crystallise increases the likelihood of prompt, pragmatic resolution. Although the Tribunal remains the ultimate recourse, it rarely delivers the outcome clients truly want. By the time a hearing is reached, witnesses and decision‑makers may have moved on, the workplace may have changed entirely, and most employees want to move forward rather than re‑litigate events from years earlier. It is through early intervention that increasingly, the most meaningful outcomes are secured.

Ultimately, our role as employment lawyers is to act in the best interests of our clients. Whether advising an employee raising concerns or an employer seeking to address them, early, constructive engagement is almost always in a client’s best interests. It allows issues to be resolved while the working relationship is still capable of repair and helps prevent clients from becoming unnecessarily embroiled in lengthy disputes. The prolonged delays in the Tribunal system have made this early, proactive approach not only preferable but essential to getting the best outcomes for our clients.

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