According to a recent report, the backlog of open cases at employment tribunals is heading towards an all-time high, hitting 49,800 at the end of 2024, a 28% increase on the 39,000 cases the year earlier.
In Scotland, a Claimant will likely wait 4-6 months for completion of a tribunal process (potentially much longer in discrimination claims), but in England the waiting periods can be as long as 18 months. London South employment tribunal is currently listing some longer hearings for 2028.
The backlog can be attributed to several factors, including the shortage of qualified employment tribunal judges and the removal of any application fee to raise a claim resulting in more claims. With the introduction of the Employment Rights Bill looming, there is fear that this backlog will reach a crisis point.
For full details of the Employment Rights Bill, due to be fully implemented by Autumn 2026, please see our earlier blog.
The Bill will, if the current proposals are passed, implement day one protection for unfair dismissal, subject to a ‘probationary period’ of 6-9 months (yet to be confirmed). It is anticipated that as a result of this change, a further 9 million employees will have the right to bring claims to the employment tribunal.
The Bill would also extend the deadline to bring a claim to the tribunal from 3 months to 6 months. The more generous deadline increases the likelihood of employees seeking redress through the employment tribunal system.
With millions more individuals gaining the ability to raise claims, and twice as long to do so, there is real concern that the employment tribunals will not be able to cope with the ever-growing demand.
Not only will the Bill open up opportunities for more individuals to bring an employment tribunal claim, the changes are likely to put employers at increased risk of legal challenges if they are not well prepared.
The Bill will for example create greater challenges for employers wishing to refuse flexible working requests, by implementing a reasonableness test. As before, employees will be entitled to two working requests per year and the employer can refuse on one of the eight grounds outlined in legislation. However, the employer can only refuse a request on one of these grounds if it is reasonable to do so. This will make it more difficult for an employer to refuse a request for flexible working and is likely to result in more tribunal claims where a flexible working request is refused.
The current financial climate and the impact of increases to minimum wage and employer’s national insurance contributions may lead to more redundancies, and that in turn could result in additional claims and backlog in the ET system.
Ongoing legal disputes can leave businesses in limbo with resources that should be directed toward growth and strategy, instead tied up in legal administration and dispute resolution. Where the resolution of these claims is delayed due to a backlog in the system, it has a real and material impact on the relevant business and the people working in it.
For larger employers, this could mean managing significant numbers of open claims simultaneously, putting significant pressure on HR teams, business finances and potentially damaging company reputation.
There is little doubt that the upcoming reforms will put a strain on an already struggling tribunal system, and therefore on the employers making use of that system. It is imperative that employers are proactive in preparing for the forthcoming reforms so that they do not open themselves up to legal challenges and potential claims.
Employers should review their policies carefully, improve record-keeping practices and consider restructuring if wage or tax increases will significantly impact their operations. Manager training, both prior to implementation of the Employment Rights Bill (i.e. now) , and following, will be key to avoiding hiccups at work and opening employers up to possible tribunal claims.
Our employment team at BTO can help employers review policies, advise on redundancy procedures or offer manager training sessions to ensure they are fully prepared for the forthcoming changes and give themselves the best chance of staying well away from the tribunal system.
Caroline Carr, Chair & Partner: cac@bto.co.uk / 0141 673 3255
Amy Campbell, Trainee Solicitor: aca@bto.co.uk / 0141 673 3255