Tribunal delays and the Employment Rights Bill: what do they mean for employers and employees?

Businesses and HR professionals with experience working with the employment tribunal system will be familiar with the longstanding backlog of cases waiting to be heard. The tribunals are designed to provide access to justice for workers, with fewer onerous procedural rules and no fee for issuing a claim. Properly resourced and staffed, the system should allow both employers and employees to resolve disputes without the complexity and cost associated with the civil courts.

However, for many years the tribunal system has fallen behind the demands on its resources and parties now wait on average between one and two years to have their cases decided.

Why is this happening?

Recent quarterly tribunal statistics show that at the end of December 2024, there were 43,000 single claim open cases and 424,000 lead multiple cases (including large group claims). 

The abolition of tribunal fees in 2017 led to a long-term increase in new cases and the Covid-19 pandemic disrupted many hearings, leading to further delays. However, more recently a lack of qualified employment judges has contributed most significantly to the backlog. Fewer judges mean final hearings are listed later, and it can take up to six months for even an initial preliminary hearing to take place. Parties periodically find their hearings postponed shortly beforehand due to ‘a lack of judicial resources’, a phrase that makes every employment specialist’s heart sink. Typically, this means significant delays and wasted costs.

What does this mean for employees and employers?

These delays can have a serious impact on the outcome of cases and in practice can meaningfully reduce employees’ access to justice. Employees (and employers) can access the tribunal system without the need for legal representation, and so cost can be less of a factor. However, faced with the prospect of undertaking a one- to two-year process, many employees will be deterred from doing so. Understandably, what most people want when they fall out with their employer is a prompt resolution and to move on with their lives.

Tribunal litigation is usually stressful, often having a detrimental effect on the mental health of an individual claimant, particularly when having to relive the (often upsetting) events that led to the claim being brought. This is perhaps unavoidable, to some extent, but the delay in obtaining a resolution means claimants are left having to dwell on their unpleasant experiences for far longer than they would prefer.

For employers, an ongoing dispute with an employee or former employee usually means that a significant amount of management and HR time needs to be dedicated to collating documents, liaising with legal representatives and attending preliminary and final hearings. Employers are also usually better able to meet the financial costs of legal assistance in defending a claim, but few are eager to do so, and the costs can be significant (often into the tens of thousands). It is also usually not possible for costs to be recovered from the other party, regardless of the outcome (other than in some limited circumstances).

Given the cost consequences, which are made more acute by the fact that the employer is usually made responsible for much of the preparation and circulation of hearing papers, and the disruption to the business, there is a large incentive for employers to agree a financial settlement, even when otherwise they might feel inclined to defend the claim. Many employers may feel strongly that a claim is without merit, but feel pressured to settle it anyway. The same is true of employees who may want their ‘day in court’, but are unwilling to wait two years to get it.

Tribunal claims are also heavily fact based, and witness evidence is often crucial, but after what can be years of delay, many witnesses can no longer recall all the details of who said what and when. This can undermine the employee’s claim, the employer’s defence, sometimes both.

Will the Employment Rights Bill change this?

Assuming that the government’s flagship employment bill becomes law, this is expected to only make the strain on the tribunals’ resources worse. The bill includes provisions removing the requirement for employees to have two years’ employment to bring an unfair dismissal claim and increasing limitation periods from three to six months. This means employees will be able to bring claims sooner during their employment and will have longer to do so following their termination (or following another unlawful act).

It is expected that this will lead to a large increase in the number of claims, and without a large recruitment drive for new judges or significant new investment in the tribunal system, these reforms are likely to only compound the issues parties already face, potentially further damaging access to justice.

What can employers do?

The steps employers can take to mitigate all this are nothing particularly new, but they are made all the more important by an expectation of the situation worsening in the coming months and years.

In short, employers should ensure that they have well-considered policies and procedures in place to manage workplace issues, as well as well-trained managers and HR staff to manage issues where they arise (and, ideally, before events give rise to a claim, e.g., pre-dismissal). Employers should seek specialist legal advice early on when an issue with an employee arises, as so often steps can be taken to mitigate the risks and avoid a claim completely.