The Escalating Employment Tribunal Backlog: A Growing Crisis for UK HR and the Justice System

The United Kingdom’s employment tribunal system is grappling with an unprecedented and rapidly expanding backlog of claims, posing significant operational and strategic challenges for HR teams across England and Wales. Jonathan Holden, a partner and national head of employment at Forbes Solicitors, underscores the escalating complexities this creates, particularly concerning case hearings and the critical imperative of robust evidence management. This deepening crisis threatens the efficiency of justice, prolongs uncertainty for both employers and claimants, and demands a fundamental re-evaluation of HR’s approach to employee relations and legal defence.

The Deepening Crisis: A Quantitative Overview

Recent disclosures from a meeting of the Tribunal National User Group, as reported by Personnel Today, paint a stark picture of a system under immense strain. The backlog in single employment tribunal claims – those initiated by an individual claimant – is projected to soon exceed 60,000 across England and Wales. This alarming figure represents a significant escalation, with outstanding claims increasing from 43,000 in Q3 2024-25 to 58,000 in Q3 2025-26. The trend is unambiguous: new claim receipts are consistently outstripping the number of quarterly ‘disposals’ (resolved cases), leading to a quarter-on-quarter deepening of the backlog.

This quantitative surge is compounded by a qualitative shift in the nature of claims being lodged. There is a discernible increase in ‘open track’ cases, which typically encompass more intricate issues such as discrimination or whistleblowing. These cases are inherently more complex, demanding greater judicial oversight, involving multiple preliminary stages, and requiring substantially longer hearing times. This combination of rising volumes and increased complexity is creating what experts describe as a ‘perfect storm’ for the employment tribunal system, stretching resources and prolonging the journey from claim submission to final hearing.

Factors Fueling the Surge

Several interconnected factors contribute to this burgeoning crisis, extending beyond the immediate statistics:

1. Abolition of Tribunal Fees (2017): A pivotal moment in the history of employment tribunals was the Supreme Court’s 2017 ruling that abolished fees for bringing a claim. Introduced in 2013, these fees had a dramatic suppressive effect on claim numbers. Their removal led to an immediate and sustained increase in claims, reflecting renewed access to justice for many but also placing immense pressure on the tribunal system’s capacity.

2. Increased Awareness of Rights: A more informed workforce, coupled with greater public discourse around workplace rights, diversity, and inclusion, has likely contributed to more individuals challenging perceived injustices. Social media and advocacy groups play a role in disseminating information and encouraging action.

3. Post-Pandemic Workplace Dynamics: The COVID-19 pandemic introduced unprecedented challenges, including mass redundancies, changes to working patterns, and increased stress, which continue to ripple through the labour market. These disruptions have inevitably led to a rise in workplace disputes related to dismissals, flexible working, health and safety, and discrimination.

4. Legislative Expansion of Employee Rights: The upcoming Employment Rights Act 2025 is anticipated to further exacerbate the backlog. Government analysis, though potentially conservative, projects an additional 21,000 early conciliation notifications to Acas and 6,900 more employment tribunal claims. These legislative changes, which extend or create new employment rights for workers – potentially covering areas such as enhanced flexible working rights, strengthened protections for pregnant employees, or new family-friendly provisions – will inevitably translate into a greater number of potential claims.

5. Judicial and Administrative Capacity: Despite efforts to recruit new judges and enhance digital systems, the pace of these improvements appears insufficient to match the escalating demand. The system struggles to process claims efficiently, leading to a widening gap between incoming and outgoing cases.

A Chronology of Delays: Justice Deferred

The impact of this backlog is most acutely felt in the protracted waiting times for hearings, which vary significantly by region and case type across England and Wales. Minutes from the Tribunal National User Group meeting reveal that most one-day hearings are now being listed for 2026. For more complex, multi-day hearings, the situation is far more severe. The longest wait time for two-day hearings was recorded in London South, with cases being listed as far off as 2028. Other high-demand regions, including the North West and South East, are seeing some two-day hearings scheduled for the first half of 2027.

Disturbingly, the Bureau of Investigative Journalism has reported even more extreme delays, with some tribunals assigning hearing dates as far out as 2030. This implies that for a claimant lodging a complex case today, the wait for a final resolution could stretch to six or even seven years. Such extensive delays transform the very nature of seeking justice, turning it into a prolonged and arduous ordeal. Typical tribunal hearing wait times, particularly for complex cases in busy regions, are now measured in years rather than months, often taking two to three years to reach a final hearing. This stark reality necessitates a complete overhaul of how HR teams approach case preparation and evidence preservation.

The Erosion of Justice: Implications for Evidence and Witnesses

The extended timeline between a claim being made and a hearing taking place introduces profound challenges for HR teams in maintaining a robust defence. Jonathan Holden highlights that sustaining a defence over such a protracted period significantly increases the probability of crucial changes within the business, its systems, and its personnel. These shifts can directly impact the availability, integrity, and presentation of evidence during a hearing.

Documented Evidence: As delays mount, documented evidence risks becoming fragmented, difficult to locate, or even compromised. Organisations frequently undergo IT and administration system upgrades, migrations, or overhauls. Information that was readily accessible on legacy systems may become archived, reformatted, or in some instances, corrupted during transitions. Metadata – the digital breadcrumbs that provide context such as creation dates, authors, and modification histories – can be lost, and file structures altered. This weakening of audit trails makes it considerably more challenging to corroborate events accurately and definitively during a hearing, potentially undermining the veracity of the defence.

Shifting People Factors: Employee turnover is a natural part of business evolution. However, over a period of several years, the likelihood of key individuals involved in a claim leaving the organisation increases dramatically. This poses a significant hurdle when attempting to call crucial witnesses. Former employees may be less willing to cooperate, may have moved to new locations, or may simply be untraceable. Even if contact is maintained, their recollection of events may have faded.

Memory Degradation and Witness Credibility: A longer passage of time profoundly affects the accuracy and confidence of human memory. Details that once seemed vivid and clear can become blurred, and the subtle but often critical nuances of conversations – such as context, tone, and intent – can become riddled with doubt. Many tribunal cases hinge on these nuanced human interactions, which are inherently subjective and open to interpretation and challenge. Witnesses who are unsure or whose memories have faded are more prone to providing inconsistent or potentially unreliable testimonies. This ambiguity places an increased burden on HR teams to meticulously reconstruct the accuracy of past events, often relying on less than perfect recollections.

Strategic Imperatives for HR Teams: Mitigation and Preparation

Given the evolving landscape of employment tribunals, HR teams must adopt a proactive, strategic approach to manage these risks. Jonathan Holden outlines several essential steps to mitigate the impacts of extended waiting times:

1. Proactive Evidence Management:

• Timeline Creation: An effective starting point is to construct a detailed timeline of events relevant to the claim. This timeline should meticulously document what happened, actions taken, and decisions made, breaking down the basis of the claim into discrete, chronological points.
• Evidence Files and Backup: Each key moment in the timeline must be supported by a comprehensive evidence file. All evidence – whether documents, emails, meeting minutes, or internal communications – should be accurately dated, signed (where applicable), and stored correctly, always adhering to data protection obligations. Crucially, these files must be securely backed up.
• Third-Party Storage: To safeguard against organisational changes, it is highly advisable for HR to not only store these files securely via their usual internal systems but also to provide a copy to a trusted third party, such as their employment law team. This establishes a robust contingency against the eventuality of internal IT, administrative systems, or process changes that could compromise data accessibility.
• Screenshot Electronic Evidence: For electronic evidence like emails, text messages, or instant messages (e.g., WhatsApp), taking screenshots is a valuable additional step. Screenshots provide another immutable form of evidence, which can be time-stamped and added to the evidence file, further safeguarding against the erosion or alteration of digital information over time.

2. Securing Witness Testimony:

• Early Witness Statements: To counter the risk of staff turnover, it is paramount to obtain detailed witness statements as early as possible after a claim has been made. If a witness leaves employment before the final hearing, their voluntary attendance may be difficult to secure. Early statements capture recollections while they are fresh and provide a documented account that can be referred to later.
• Understanding Witness Orders: HR teams must be aware of the increasing likelihood and utility of Witness Orders. These legal instruments can be sought by either party if they believe a person possesses relevant evidence but is unwilling to attend the tribunal voluntarily. According to the Employment Tribunal Rules 2024, a tribunal has the power to compel the attendance of any person in Great Britain to give evidence, produce documents, or provide information at a hearing. While not a substitute for willing cooperation, Witness Orders provide a crucial mechanism for ensuring vital testimony is heard.

3. Active Case Management and Settlement Strategies:

• Ongoing Review: Longer waiting times necessitate treating tribunal cases as live, evolving risks. Scheduling regular, perhaps quarterly or semi-annual, reviews of evidence files can help identify inconsistencies, address gaps, and ensure all relevant new information is incorporated.
• Re-evaluating Conciliation and Settlement: A claimant’s appetite for early resolution or settlement may change significantly over time, influenced by personal circumstances, ongoing legal costs, or the sheer psychological burden of the delay. HR teams should proactively factor in scheduled reviews of conciliation and settlement opportunities. What was unacceptable at the outset might become viable later, presenting new possibilities to avoid prolonged and costly litigation.
• Impact on Employer Settlement Appetite: Interestingly, increased waiting times can also influence an employer’s willingness to settle. Previously, a settlement might be offered to avert an imminent hearing. With hearings years away, employers might choose to retain the funds earmarked for a settlement, using them as part of their annual budget, and only negotiate a settlement closer to the final hearing if absolutely necessary. This shift in financial calculus can alter negotiation dynamics.

Official Responses and Broader Stakeholder Perspectives

The Ministry of Justice (MoJ) and HM Courts & Tribunals Service (HMCTS) are acutely aware of the backlog. Their stated efforts include recruiting additional judges, investing in digital transformation programs to streamline case management, and exploring alternative dispute resolution mechanisms. However, these initiatives appear to be struggling to keep pace with the accelerating rate of new claims and the increasing complexity.

Legal professional bodies, such as the Law Society and the Employment Lawyers Association, have repeatedly voiced concerns about the erosion of access to justice. They highlight the severe strain on the judiciary, the financial and emotional toll on claimants awaiting resolution, and the increased legal costs incurred by all parties over prolonged periods. HR professional bodies, like the CIPD, emphasize the operational burden on businesses, the challenge of maintaining employee relations during protracted disputes, and the potential for reputational damage. Claimant advocacy groups underscore the inherent unfairness of justice delayed, arguing that it can effectively deny justice, especially for individuals who may face financial hardship or emotional distress during years of uncertainty.

Beyond the Hearing Room: Wider Impacts

The escalating tribunal backlog has far-reaching implications beyond the direct parties involved in a claim:

• Fairness and Access to Justice: The fundamental principle of timely justice is compromised. Delays can disproportionately affect vulnerable claimants who may lack the resources to endure years of litigation.
• Financial Burden: Businesses face ongoing legal costs, uncertainty, and the potential for larger awards if cases drag on and evidence deteriorates. Claimants, too, incur legal fees and face lost earnings and the inability to move on from a dispute.
• Employee Relations and Morale: Protracted disputes can sour workplace morale, create anxiety among employees, and damage the employer’s reputation as a fair and responsible organisation.
• Business Continuity and Planning: The uncertainty of unresolved claims can impact business planning, budgeting, and investment decisions.
• Mental Health: The stress and anxiety associated with prolonged legal proceedings can have a significant detrimental impact on the mental health of both claimants and respondents.

Ultimately, the widening gap between a claim being made and an employment tribunal hearing taking place represents a profound challenge that HR teams must urgently prioritise. Success at a hearing will increasingly hinge on the ability to meticulously preserve evidence, which demands early, strategic preparation and an active, ongoing safeguarding of case integrity. The system itself requires significant and sustained investment and reform to ensure justice remains accessible and timely for all.