Current delays
Employers will be well aware of the ET backlogs, which have been increasing steadily since tribunal fees were declared unlawful in July 2017.
As considered in our previous article, this is not a new issue but it is a growing one.
According to the Ministry of Justice’s latest quarterly tribunal statistics for the period April 2026 – June 2026:
- New single claims are being brought at more than twice the rate they are being disposed of (14,000 received vs. 6,100 disposed of).
- The number of open single claims has increased by 51% compared to the same period a year ago and 9% from the previous quarter. The total number of open single claims in June 2026 was 70,000, the highest level in the Ministry of Justice’s timeseries.
- Total open claims (single and multiple) are now at over half a million (537,000); the ET disposed of only 10,000 of these in this 3-month period.
Acas has also reported a significant increase in demand for its services, handling more than 150,000 EC notifications in 2025/26 and experiencing a 27% increase in volume from 2024/2025.
Future delays
It’s possible that these delays will continue to worsen following the increase in time limits for bringing new ET claims to six months from 1 October 2026 and further still from 1 January 2027, when the Employment Rights Act 2025 unfair dismissal changes come into effect.
From 1 January 2027, a broader pool of employees will be eligible to bring unfair dismissal claims, as the period of qualifying service for an unfair dismissal claim will reduce from two years to six months. It was estimated by the UK government that this will extend protections for 6.3 million employees.
Additionally, removal of the compensatory cap on unfair dismissal claims on the same date could add considerable complexity to the valuation of such claims, potentially increasing the length of hearings and adding to delays.
How are employees responding to the delays?
1. Evidence and unlawful document retention
ET delays have a significant evidentiary impact on proceedings. From the employer’s perspective: memories fade over time, witnesses move on to other jobs and evidence may no longer be available for claims submitted later under the new time limits.
Perhaps relatedly, more employers are also encountering employees unlawfully retaining their employers’ documents and confidential information on termination of employment, often purportedly to use as evidence in a subsequent ET claim. This may also be connected with employees increasingly using GenAI tools to prepare complex grievances and ET claims.
Given the ET delays, employees might expect to wait longer for these documents and information to otherwise be made available in the course of disclosure. Employers also may not discover that such documents and information have been retained until then (and we note below some steps that employers may wish to consider to avoid this).
However, employees have no legal right to retain their employers’ documents or confidential information for use in future or ongoing litigation and must wait until disclosure. It was recently noted in Payone GmbH v Logo [2024] EWHC 981 (KB) at [42] that
It is well-established that the Courts will not sanction employees helping themselves to, or retaining, their employer's documents for the purposes of future litigation, or anticipated regulatory issues or protected disclosures, or even taking legal advice.
Where an employee has unlawfully retained confidential information, the employer may be able to seek injunctive relief requiring delivery up and or deletion/destruction of the retained information by the employee (see e.g. Nissan Motor (GB) Ltd v Passi [2021] EWHC 3642 (Ch)).
These proceedings are costly and complex, particularly as parallel proceedings alongside an existing ET dispute, so employers will want to take steps to reduce the risk of employees retaining documents and confidential information, and to avoid finding out at late stage that they have them. In many cases, the risks of unlawful retention of information by employees can be minimised by taking the following steps:
- Ensure adequate contractual protections are in place requiring return of company property and confidential information on termination of employment.
- Maintain a GenAI policy that explains, among other things, how GenAI should and should not be used in the workplace, particularly in relation to confidential information.
- Don’t wait for information to go missing to take action and build appropriate checks into the termination process:
- Remind employees on termination of their contractual obligations to return/ delete documents and other information and follow this through to ensure full compliance.
- Monitor systems appropriately for signs of exfiltration of information by employees and investigate swiftly.
2. Employees seeking remedies through alternatives to the ET?
With no signs of improvement to the ET delays, employees bringing claims in the ET are left waiting years for a remedy.
Perhaps unsurprisingly, we are beginning to see more employees seeking remedies through alternatives to the ET, such as insolvency-style proceedings for claims relating to bonuses or other contractual payments, or civil proceedings for personal injuries arising from discrimination or harassment.
In insolvency-style cases, employees are able seek payment of undisputed sums by issuing a statutory demand for sums to be paid as a debt. If a statutory demand exceeding £750 is unpaid, the creditor (in this instance, the employee) is able to commence winding up proceedings against their employer seeking involuntary liquidation. This approach applies significant pressure and avoids the inevitable delays on receiving a remedy and the monetary cap of £25,000 on claims for breach of contract brought in the ET.
Even if unsuccessful, service of a statutory demand could flush out the details of any dispute and unlock settlement more quickly than issuing proceedings amidst the current delays.
Employees may also be more inclined to bring personal injury claims in the County or High Court for psychiatric injury arising from discrimination and harassment where they might receive a speedier remedy than bringing claims in the ET (although it is worth noting that, to a lesser degree, the County Courts are encountering some of the same issues as the ET with the explosion of AI-generated money claims in recent years).
In cases involving parallel proceedings, employers may stand to benefit from the delays caused by the ET backlog. In employee competition cases taking place in the High Court, it’s common for defendant employees to bring tactical claims in the ET for unfair dismissal, constructive unfair dismissal, whistleblowing or discrimination in parallel to apply pressure to the employer. The tactical effect of bringing an ET claim in many cases will be weakened significantly by the delays if much of the preparation can be postponed in line with hearing dates.
Where does this leave us?
With little prospect of improvement in the ET backlog, the wider impacts of the delays remain to be seen along with the impact of the Employment Rights Act 2025 changes. The second instalment in this series will consider practical strategies for employers to manage issues arising from the ET delays looking ahead.
