The UK’s employment tribunal backlog continues to grow, with delays soared by 25% in just a quarter, – and lawyers are warning the crisis may worsen.
And James Johnson, a Partner at UK law firm Smith Partnership and an expert in employment law, has urged employers to act before problems escalate to litigation.
“Claims are currently being listed until the end of 2026, and even some in 2027,” he explains. “We’ve not really seen things improve – one of the initial reasons was COVID-19, but we are also seeing other complications, including difficulties in recruiting qualified employment judges to hear cases.”
Tribunal delays have introduced challenges not just for claimants and respondents, but also for legal professionals like Johnson.
“It’s very difficult to prepare cases now, because you are attempting to prepare for something that probably won’t be heard for two years,” he says. “The delays affect collation of evidence as people’s recollections of events change over time, while documents and physical evidence are being lost.
“Secondly, it impacts the advice we give to our clients, in relation to both individuals and employers. We have advised them that if they go down a certain route, they could end up in tribunal litigation, and then they have this hanging over their heads for the next two years.
“So often we’re advising on taking more proactive action to ensure they’re not ending up in tribunal proceedings.”
Here James outlines five proactive steps to prevent employment tribunal claims
1. Establish clear procedures from the outset
Firstly, having proper procedures in place from the outset greatly reduces the risk of tribunal claims,” Johnson advises. Policies like anti-bullying procedures, disciplinary and grievance procedures and equality and diversity policies, can protect from claims. “They also give employers a defence, and give employers and employees internal routes to resolution.”
2. Train employees and managers effectively
“Secondly, I would recommend implementing training to both employees and managers. Induction processes are really important and these will become even more important when the government’s ‘Day 1 Unfair Dismissal Rights’ take force.
“They ensure employees know from day one what correct behaviours need to be followed, what their employer’s values and standards are, and also make sure they know the ways in which the employer deals with workplace disputes.”
“Also employers should make sure that managers are trained and given the necessary tools to ensure they can nip workplace issues internal in the bud, for example, performance issues, lateness or behavioural issues, resolving the issue without ending up in the employment tribunal system.”
3. Use well-drafted employment contracts
“Thirdly, going back to the point about documentation, having a well-drafted employment contract will work wonders in terms of making sure disputes don’t arise.
“We often find that many disputes arise through claims relate to missing or inadequate contracts of employment.”
A strong contract, he says, “makes sure both parties know exactly where they stand.”
4. Build trust through communication
“Next would be building the trust relationship with employees,” Johnson advises. “Good communication, ensuring employees feel heard and respected, and that they’re being treated honestly and fairly, works wonders when ensuring situations are dealt with quickly, amicably and effectively.”
5. Maintain thorough and accurate documentation
“Finally, we find a number of cases where an employeer says ‘we always had concerns about this employee’, but when you ask for the supporting documentation to show these concerns were raised with the employee, nothing is available.”
“Either they’ve not tackled the issue or not documented the action take. Having clear documentation on an employee’s record, including any formal action, informal counselling or welfare discussions, appraisals, disciplinary records, and the like, all help reduce the chances of claims being brought by employees.”
Avoiding litigation after disputes arise
When prevention isn’t possible, James urges early, strategic resolution.
“One of the key areas when trying to prevent employee litigation is what are known colloquially as “protected conversations”, which are off-the-record conversations with the employee whereby they’re offered the opportunity to leave their employment and release any claims that they may have.
“We also have a system in the UK called Acas Early Conciliation. Acas will hold confidential discussions between the employee and employer to see if a resolution can be reached through a binding settlement before a claim is issued to the tribunal.
“Acas also provides the same service all the way up to when the claims are eventually heard by a tribunal.
“Finally, there are tribunal-led mediation and judicial assessments available when claims are issued. Here, a judge will look at the case and will try to assist the parties in reaching the terms of a settlement to avoid lengthy hearings.”
Final advice
James’ final recommendation is to consider settlements before the case reaches its most resource-intensive stage.
“In my experience, often claims come from a point of principle, with both parties set in their ways and they don’t feel as though they’ve each done anything wrong,” he reflects. “Employers should consider, however, at a preliminary stage, an out-of-court settlement. They can save a considerable amount of time and cost.”
“Often what we’re finding is that once the case gets fully prepared, that’s when the cases are settling. So businesses should be looking at these out-of-court settlements to save themselves resources and time much earlier than they are currently.”
