Employment tribunals in England and Wales are experiencing record levels of delay. According to the latest Ministry of Justice figures, there are now around 58,000 outstanding employment tribunal cases, representing an increase of almost 50% compared with the previous year. Commentators expect it to shortly exceed 60,000.

In some regions, most notably London and the South East, complex claims involving allegations of discrimination and whistleblowing are now being listed several years into the future, with reports of hearing dates as far away as 2030. These regions also comprise half of all employment tribunal cases received.

For employers, these delays create prolonged uncertainty. For employees or employment law practitioners, they risk undermining confidence in the tribunal system as an effective means of enforcing workplace rights.

How the backlog developed

The cause of the current backlog is multi-faceted and stems from numerous long-running structural pressures. For example, the abolition of employment tribunal fees in 2017 significantly increased claim volumes and removed a financial barrier to litigation.

More recently, the composition of the caseload has changed. Complex claims, including discrimination and whistleblowing matters, now comprise a majority of the tribunal workload and typically require multiple hearings and extensive judicial case management.

Official tribunal statistics show that new claims continue to outstrip settlements of claims. In late 2025, single employment tribunal claims rose sharply while the number of cases concluded fell, leading to a further expansion of the outstanding caseload.

A shortage of salaried employment judges remains a critical constraint, limiting the system’s capacity to absorb further increases in demand. Whilst the Ministry of Justice has recently embarked on a recruitment campaign in light of these pressures, it remains to be seen if this will seriously impact the existing backlog.

The impact of the Employment Rights Act reforms

Against this backdrop, the government is currently implementing wide-ranging employment law reforms under the Employment Rights Act, described by ministers as the most significant expansion of workplace rights in a generation.

Key changes that employers should be aware of include:

· Reducing the qualifying period for unfair dismissal claims from two years to six months

· Extending the limitation period for most claims in an employment tribunal from three months to six months

· Removing the statutory cap on compensation for unfair dismissal

Whilst the government’s impact assessments generally assume that these reforms will lead to increased settlements, most commentators deny this and expect that these changes may lead to thousands of additional tribunal claims, adding further pressure to an already overstretched system.

The growing influence of AI in tribunal claims

A further emerging feature of employment litigation is the increasing use of generative AI tools, like ChatGPT, by unrepresented claimants to generate witness statements or pleadings. While such AI-generated content can appear convincing at a first glance, it often misses the key issues relevant to a tribunal claim and may create additional challenges.

Generally, employment cases often turn on witness credibility and cross examination will often reveal that a witness or claimant does not adequately understand the nuances of the claim before the tribunal.

For employers, this trend reinforces the importance of careful preparation and seeking prompt specialist legal advice to understand the merits of a potential claim and if settlement is a sensible option.

Employer concerns: cost, certainty and delay

Employer organisations and employment law practitioners have expressed concern that the combination of expanded rights and limited tribunal capacity risks deepening existing delays. The Employment Lawyers’ Association has warned that the system is receiving more cases than it is capable of resolving, raising questions about the practical enforceability of new rights.

From an employer perspective, prolonged case timelines increase financial and operational risk. Unresolved claims can remain live for several years, absorbing management time, legal costs and internal resources. The removal of the cap on unfair dismissal compensation has also introduced a new element of unpredictability, particularly for organisations operating across multiple jurisdictions.

Business groups have cautioned that uncertainty and delay may have a broader economic impact, with some employers already reassessing hiring decisions in light of increased litigation exposure.

What this means for employees

Evidence becomes harder to manage over time, memories fade, and the stress associated with unresolved disputes can be significant.

In this context, early resolution, whether through internal processes, workplace mediation or Acas early conciliation, becomes increasingly important for all parties.

Government response and proposed solutions

The government has confirmed that it is recruiting additional employment judges and encouraging more robust case management and early settlement routes, including Acas conciliation.

However, professional bodies and law firms argue that incremental measures may not be enough. Calls for reform include greater digitalisation of tribunal processes, more effective filtering or disposal of weak or procedurally flawed claims, and sustained investment in tribunal staffing and infrastructure.

Without such measures, average waiting times, which now exceed 30 weeks for many claims, are likely to continue rising as further reforms take effect.

Practical takeaways for employers

In the current climate, employers should:

· Train managers on early dispute resolution and documentation.

· Take Acas early conciliation seriously as a tool to avoid prolonged litigation.

· Consider the possibility of workplace mediation as an option.

· Factor tribunal delay and cost risk into workforce and HR planning.

For many organisations, prevention and early resolution remain the most effective ways to manage tribunal risk while the system remains under pressure.

Looking ahead

For employers and employees alike, the coming years are likely to bring stronger rights, but also longer delays How effectively the tribunal system adapts will determine whether those rights deliver meaningful, timely outcomes in practice.

Please note the contents of this article do not constitute legal advice. If you require any further information, or if you would like our assistance, please contact us at employment@berrysmith.com or on 02920 345 511.