Deferred Justice – Managing the Employment Tribunal Backlog?

Even for those that have been watching the Employment Tribunal backlog build for some time, current listings are causing serious pause for thought.  A client recently received an ET1 coupled with a hearing date listed for July 2029 and colleagues across the sector are reporting listings into 2030.  I don’t think anyone can argue that the system is broken.

The ET is a system built on a laudable premise, a system that should sit outside the standard court system and aim to resolve employment disputes less formally and swiftly.  But that just isn’t what it is anymore.  More often than not, both parties lawyer up and it not at all unusual for claims to take 2 years to get to a full hearing.  How is that fair for an individual who has been dismissed or discriminated against and is seeking justice or for a respondent defending a claim!

Recruiting more judges (the oft sited solution) isn’t going to fix the problem when the back-office administration simply isn’t working.  Applications go unanswered, often until the last minute, the online case management platform is cumbersome with delays in documents being uploaded and emails seem to disappear into an abyss.   There has to be a better way, but I think everyone can agree there is not going to be a quick solution!

In the meantime, how is one supposed to prepare for a hearing which is likely to take place once many, if not all, key witnesses have left employment?  How are those witnesses who remain employed supposed to recall facts of events that they may not have even realised were significant some 2 or even 3 years earlier.

It’s not going to get better.  AI is drafting grievances, SARs and claims in a matter of seconds and employees are being bolstered in the conviction of their claims by sycophantic AI systems that feedback information the prompter wants to hear.  Add to that increased unfair dismissal protections and it is going to get worse, probably a lot worse, before it gets better!

The Numbers

Over recent years the number of claims being issued has risen dramatically, at the same time the number of claims being resolved has fallen.  Claims (especially those drafted by AI) are longer and taking longer to resolve and delays continues to grow.   The Employment Lawyers Association is consulting on ways to reform disputes and plans to suggest “radical reforms to address the backlog which is only getting worse”. But reforms have a long lead time!

Data for 2025 made stark reading. During the period 1 October to 31 December the ET system received 23,000 claims.  It disposed of 8,400.  Each quarter seems to see the number of claims increasing and at the end of December there were 523000 open claims in total in the Employment Tribunals – which is simply unmanageable.  The system is taking in far more than it is clearing, and the gap is widening quickly – the data for 2026 doesn’t bear thinking about.

What this means in practice:

• Evidence Degrades – Memories fade fast, documents prepared at the time become harder to contextualise and “facts” become woollier. Typically claimants recount a narrative possibly which they diarised at the time because it was important to them. Respondents have to reconstruct a process and, more critically, a rationale to events which may have seemed entirely innocuous at the time.
• Witnesses move on – both literally and metaphorically. Managers, such as those that heard the grievance or conducted the disciplinary are vital but what if, by the time the matter is finally listed, they have changed employers, retired or simply do not wish (or are unable) to give up their time to recount events of years earlier for an employer they no longer have any loyalty to.  Even the most co-operative employee is likely to be reluctant to be involved so long after the fact, and a reluctant witness (as anyone who has applied for a witness summons knows) is often worse than no witness at all.
• Claims sit on the balance sheet – open claims are an issue in many contexts, for reporting obligations, for due diligence in any transactional context, for obtaining insurance quotes! It’s often not something that factors into early conversations about strategy and settlement but longer listing times mean more occasions where open claims could impact.
• Management time – a factor not to be overlooked. HR teams will be under pressure throughout the duration of the claim. Witness statement preparation, document review and preservation, endless conversations with lawyers, or (the worst of all worlds) unemployed litigants in person, all take time away from the role that the individual is supposed to be doing.  Managing the business moves things forward, managing claims is a drain on resources that stalls progress. On a multi-year claim, that cost compounds.
• The balance of power shifts – delay favours claimants. Yes, it is a distraction for them. It’s stressful and not ideal when starting new employment but frequently they have less to lose in playing the long game.  Respondents could hope that delay will breed boredom but that’s rare, not least because a claimant (particularly those who are well advised or well-funded) who waits it out is likely to be in a stronger negotiating position immediately prior to a public hearing which the respondent is keen to avoid.

What can Employers do to manage risk?

Waiting out a claimant is also unlikely to be a successful strategy from a cost perspective.  Even the least meritorious claim is going to cost significant sums to defend and administrate.    Claimants are less likely to be concerned by having to preserve witness evidence – often the only narrative is their own, and that tends to become more entrenched over time. Memory after all is not a reliable historian!

Employers need to be proactive and pursue early settlement aggressively.  There is, after all, often an immediate financial pressure on an employee that has lost their job, meaning that there is a greater incentive to settle for a number lower than the one they believe (or their AI has told them) they are entitled to. A bird in the hand is, so the saying goes, worth two in the bush!

• Settle hard and fast – treat ACAS as an opportunity to try and resolve matters. If you feel that ACAS is acting as a post box (some conciliators are genuinely very good, others simply relay messages) use the time to an opportunity to communicate with the claimant directly setting out the rationale for any offer rather than just a value which the claimant is likely to regard as arbitrary.
• Consider mediation – ACAS is under pressure in the same way that the Tribunal system is. Consider independent mediation – it is an incredibly successful form of dispute resolution (and no I’m not just saying that as a mediator).  Sometimes the opportunity to explain a grievance and re-tell experiences that felt unfair or discriminatory can be a powerful step towards resolution.  That isn’t going to happen without someone neutral in the room.  If you don’t have a trusted panel of mediators – now is the time to consider one – and yes, of course I’d be delighted to be on it.
• Preserve evidence – ensure that documents are preserved (document holds should be circulated the moment a claim is received), witnesses are identified and asked to provide contemporaneous accounts early and exit interviews (and any settlement agreements) with witnesses are entered into with the relevant claim mind. The costs of frontloading witness statements can seem counter-intuitive – but in a couple of years’ time you’re likely to be going to be very grateful that you did.
• Create management systems that document – it is more important than ever to ensure that employers broadly have documenting system that captures a blow by blow of the employee lifecycle. Reviews, appraisals, 1:1s, project instructions, outcomes, meeting notes are critical if you are building a defence with few witnesses.  Contemporaneous documentation not just of what but also the rationale is your best friend in a drawn out ET claim.
• Review claim reserves regularly – keep settlement figures under review. Costs will escalate quickly and a figure that feels generous (unjustified / unreasonable / unfair / like giving into legalised blackmail) at early conciliation stage often looks rather more cost effective against legal bills at a final hearing 2 plus years down the line.
• Play the long game? – With claims taking so long some will believe their own narrative and become more embittered and emboldened with time. Others might lose interest and perhaps see the value in a lesser settlement they were hoping –  but I wouldn’t recommend leaving that to chance.  Play the long game ONLY if you can’t settle early, has to be the best advice at the current climate.

What’s next?

The Employment Rights Act 2025 is rolling out over the next couple of years.  Since April 2026, sexual harassment has been a qualifying disclosure for whistleblowing purposes, and the protective award for collective redundancy failures doubled to 180 days. From January 27 (so anyone employed after the end of June 26) unfair dismissal becomes a day-one right, the cap on the compensatory award is removed, and we are rapidly heading into a world where a new and much more vigorous probation regime has to apply. The Government’s own impact assessment estimates that as a result of the changes around six million additional workers will acquire unfair dismissal rights.  That means more claims.  Tribunal delays of 2 – 3 years for substantive claims must be regarded as the new normal – and that creates more than just administrative challenges.  One has to consider whether a listing 3.5 years after events in question is even conducive to a fair hearing.  Is it in the interests of justice? In the recent EAT case of Boateng v Moss Bross Group Ltd the EAT held that an ET was entitled to strike out the claimant’s discrimination claims on the ground that a fair trial was no longer possible.  Ultimately substantial delay caused by the employer entering into a company voluntary arrangement coupled with the COVID-19 pandemic  meant that many witnesses either no longer worked for the employer or were uncontactable or unwilling to cooperate.  In those circumstances the EAT found that the tribunal was entitled to conclude that, given the specific facts of the case (involving large number of alleged incidents in respect of which there were only limited witnesses available) the employer would be at an unfair disadvantage.  Is that not perhaps the majority of cases 3.5 years later?  However, on the flip side, denying a claimant justice just because the system is broken is simply not right.

There is no easy answer.  But if you want to be in the best shape possible consider the following:

• Document as you go!
• Diarise meetings, and add impromptu ones as a diary note after the event.
• Record internal rationale in more detail than you have historically.
• Communicate in writing – or verbally with a follow up.
• Ensure decisions refer to documented evidence.
• Review claims as soon as they are received, identify witnesses and put a hold on documentary evidence.
• Engage with claimants.
• Consider mediation and settle early where you can!

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