From April to June 2024, the number of open tribunal cases increased by 18%, while disposals decreased by 4%. This resulted in a 4% increase in the total caseload of tribunals in the last year.
“Justice delayed is justice denied for not just employers but also claimants,” said Chris Syder, employment partner at the law firm Penningtons Manches Cooper, speaking to HR magazine.
“The significant backlog means that employers are compelled to weigh up the organisational and economic impact on their operations of delay, which in our experience leads to settlement considerations taking greater account of the consequences of delay. Inevitably, this affects employers’ confidence in the employment tribunal system [ETS].”
The tribunal backlog particularly impacts SMEs, according to Matt Clutterham, founding partner of transformation consultancy Q Branch.
Read more: "Employment law isn’t working for anyone": HR responds
He told HR magazine: “The employment tribunal backlog presents significant challenges for UK SMEs. Delays in case resolution can disrupt day-to-day operations, create uncertainty in recruitment, and strain employer-employee relations.”
Employers experiencing a delayed tribunal claim should do everything they can to speed up the process, according to Gerard O’Hare, legal director at HR consultancy WorkNest.
"Employers experiencing a delay in a tribunal case should keep pressure on their representative to make sure they are deploying all practical measures to keep the case moving forward," he told HR magazine.
"Witness statements should be taken sooner rather than later, to avoid fading recollections, and consider using a settlement agreement for any witness leaving your employ, as you can include a provision requiring them to assist with investigations and tribunal proceedings."
Employers could explore the option of early conciliation if they did not want to wait for a hearing, Syder added.
“Some [employers] will be content to wait it out, especially if they assess that the claimant cannot afford the delay,” he said.
“Others may pro-actively explore the possibility of early conciliation before a liability hearing, typically utilising ACAS to present a settlement offer that makes no admission of liability.
“In addition, without prejudice mediation is growing in popularity, especially as the outcomes can be more flexible than those on offer with the ETS.”
The justice ministry's data noted that the largest average tribunal award was for age discrimination claims, at £100,000, compared with other discrimination claims. The largest maximum award in 2023/24 was for sex discrimination, at £995,000.
Read more: Rise in remote work tribunal cases “tip of the iceberg”
The number of tribunal cases related to remote working has been rising since 2021, according to a report published in June by consultancy Hamilton Nash. Meanwhile, the number of tribunal claims that involved whistleblowing rose by 92% between 2015 and 2023. Neurodiversity-related claims have also increased, according to law firm Fox and Partners.
Clutterham encouraged SMEs to reform their HR approach amid the backlog.
He added: “This issue goes beyond legal backlogs. It signals the need for businesses to rethink their approach to people management and the brand image that the business wants to portray.
“In today's fast-paced social landscape, with constantly shifting expectations, companies that fail to adapt and prioritise their people at the core of their operations will face significant challenges. “On a positive note, the delay in tribunal cases provides an opportunity for employers to take stock of their culture.”
Ben Wilmott, head of public policy at the CIPD, warned HR magazine that the government's plans to make unfair dismissal a day-one right could exacerbate the backlog.
He said: “It will be important that policy makers understand any unintended consequences of completely removing the unfair dismissal qualifying periods, including a possible increase in employment tribunal claims at a time the tribunal system is already under huge pressure. This potential risk has been raised by CIPD members.
“Micro and small firms in particular risk falling foul of any changes to unfair dismissal rules if the changes are not properly consulted on and thought through, as they typically have few formal HR practices and often poor awareness of employment law.”
