Labour pains

Claims drafted by AI, new worker protections and a cash-starved courts system are combining to overwhelm the Employment Tribunal and its appellate body. With cases listing for 2030, Sian Harrison canvasses opinion on potential reforms that could lighten the load.

The average person spends around one-third of their life working – possibly an underestimate for many in the legal profession. Given that we devote so much of our precious time and energy to our jobs, we hope to find satisfaction (and maybe even some enjoyment and a little pride) in our work, as well as positive relationships with our colleagues and employers. But, as with all relationships, where there is a breakdown, it can trigger a lengthy and complex legal process.

Enter the Employment Tribunal (ET). Initially known as industrial tribunals, these were first introduced in 1965 in response to a highly unionised workforce and the deleterious effect on the UK economy of serial industrial action.

Naively perhaps, it was thought that if employers had a simple and effective way to deal with workplace disputes, the strikes would abate. In the intervening 60 years, the ET has become one of the most important engines of changing workplace relations, with equal pay, worker recognition and discrimination challenges bringing forth seismic change.

One only has to look at landmark disputes from the past few years to acknowledge the scale of the consequences. These include the landmark case which determined that Uber drivers were ‘workers’ and therefore entitled to statutory protections. The case went to the Supreme Court, which found the ET’s ruling had been correct. That changed the face of the gig economy. A discrimination case over public sector pensions cost the Treasury an estimated £19bn to rectify. The ET ruled in 2017. The Court of Appeal confirmed its finding of discrimination in 2018. A Birmingham City Council equal pay claim cost the authority more than £250m to settle after unions encouraged thousands of ET claims following a test case. This was partly responsible for triggering the refuse collection strikes in the city.

Together with its younger relation, the Employment Appeal Tribunal (EAT) – established in 1975 – the ET has firmly established its role as the place to resolve more than 100 types of claim. That amounts to a vastly expanded workload since its inception, arising from enhanced protections for workers.

Crippling workload

As with so much in 2026, however, the tribunals are buckling. Way back in 1968, the Donovan Report considered the tribunal an ‘easily accessible, informal, speedy and inexpensive’ means of resolving disputes, but today it is anything but. Hearings are being listed for 2030 and the backlog has grown 16% over the last year. Quarterly figures published last week show there are now more than half a million open claims – a combination of 64,000 individual claims and 467,000 people involved in 7,500 group or multiple claims.

Individual claims increased 55% on the previous year, and although there has been an increase in disposals, the tribunal cannot keep up.

Law Society president Mark Evans observed that it was ‘alarming’ to see the backlogs ‘continue to spiral’, and said he welcomed the Commons justice select committee’s decision to instigate an inquiry.

All this, too, effectively precedes the Employment Rights Act 2025, which from January 2027 will reduce the threshold for unfair dismissal claims from two years’ service to just six months. Unfair dismissal presently accounts for nearly a quarter of all tribunal claims.

The act also introduces other measures likely to affect the work of the ET and EAT, including whistleblowing protections for sexual harassment, lifting the cap on compensation and increasing the time limit for making most types of tribunal claim from three to six months.

The Employment Lawyers Association (ELA) estimates that claims could rise by as much as a third in the wake of the act and that the backlog will continue to grow as an already pressured system is further inundated.

To make matters worse, claims are also becoming more time-consuming. Chatbot ‘lawyers’ have increased both the complexity of claims and the volume of paperwork. It is hardly surprising that complainants are turning to artificial intelligence to guide them through a complicated legal process. But the bots are programmed to favour the prompter and are only given a partial picture of events, leading to some litigants in person believing they have stronger cases than in fact they do. LiPs go on to submit screeds of documentation, all of which has to be read by the tribunal.

Human cost

The true human cost can never be fully calculated. The stress and strain on those bringing cases – as well as employers defending spurious claims and other workers caught up in them – is unquantifiable. But the impact of delays was encapsulated in a recent BBC report. This featured a woman called Catriona Ball, who lodged a claim on behalf of her late husband Lewis following his untimely death in 2024. She will not see the case come before a judge until 2029. The report details how Lewis died weeks after he quit a job he believed had been making him ill. Ball lodged a claim at the Employment Tribunal – contested by his former employer – for constructive unfair dismissal and an alleged failure to make reasonable adjustments for disability.

She described how the delay left her ‘stuck in this grief and managing legal issues’.

Susan Thompson, partner at Simkins, sums up the crisis and its causes: ‘The system is under severe strain. Years of underinvestment, too few judges and the rise of AI-generated claims have all added pressure. Claimants are now regularly filing lengthy claims covering every possible allegation. With a system close to breaking point, cases risk being abandoned or struck out because witnesses are no longer available, memories have faded and a fair hearing may no longer be deemed possible.’

Calls for corrective action have reached a crescendo. Various solutions have been floated to tackle the issues and reduce the backlogs. In May, the ELA proposed a radical overhaul of the way ET claims are handled after commissioning a report, Reimagining Employment Dispute Resolution and Enforcement.

The report, which is predicated on there being no (or little) extra funding, proposes a three-track system based on value. Claims of less than £20,000 would be handled swiftly by a legal officer, while a second track would handle claims for up to two years’ earnings with strict hearing limits. A third track would be reserved for high-value or complex cases, operating under civil procedure rules with a full costs regime.

Other measures floated include earlier and better mediation (which would be compulsory), a new Employment Resolution Service and even a rethink of language.

Catherine Barnard, one of the report’s authors, says ‘grievance’ – a process which has to be gone through within a workplace before a tribunal claim can be brought – sets a negative tone for the conduct of cases and entrenches people in their positions. The report suggests this be replaced with a ‘statement of concern’.

The report’s proposals were endorsed by Charlie Mayfield in his Keep Britain Working review for the government. The former John Lewis chair also recommended fast-tracking greater use of alternative dispute resolution. The government, meanwhile, has confirmed it is recruiting more tribunal judges, and encouraging more robust case management and ADR.

But while everyone agrees with the diagnosis, there is no unanimity on the treatment required. The Work Rights Centre, a charity focused on migrant and disadvantaged workers, issued its own report in December last year which drew attention to reduced sitting days and concluded that the system needs an injection of cash to avoid collapse. CEO Dr Dora-Olivia Vicol warned: ‘Ministers risk shutting the door on justice unless they urgently align enforcement resources with their legislative ambitions. Without immediate support for judicial capacity and legal advice, access to employment justice will become a luxury of the past.’

Trade unions, having lobbied for the improved protections in the Employment Rights Act, also demand further investment. In its response to the Government’s Equality Law Call for Evidence, the TUC argued that ‘adequate funding and capacity of the [relevant bodies], namely the Equality and Human Rights Commission and the Employment Tribunal system, are essential to deliver effective regulation and enforcement of equalities law’.

The TUC also highlighted the role of union representatives in resolving disputes before they reach tribunal. Unions are also firmly against any suggestion of resurrecting fees. It was UNISON, the UK’s largest union, which in 2017 brought the landmark Supreme Court case which led to the tribunal fees introduced by the coalition government being struck down following a slump in the number of claims. Current justice secretary David Lammy last year ruled out introducing even a modest fee.

Barnard is clear that fees are a no-go area, but suggests that claimants in high-value and complex cases should pay 10% of costs where they turn down a more favourable settlement than they are eventually awarded.

Another bone of contention concerns mediation. While the ELA report suggests the creation of a new body, Barnard thinks an improved Acas could take on this crucial work. While there is currently limited capacity and the conciliation service is itself beset by delays, some feel it is best placed to handle negotiations.

Thompson says the ELA’s suggestion to amend Acas’s code of practice on disciplinary and grievance procedures is a positive step. ‘In theory, this could allow for simple complaints to be defused early and avoid unnecessary escalation,’ she tells the Gazette. ‘It would also certainly encourage businesses to not treat such processes as a mere tick-box exercise. I would also suggest there should be bigger percentage uplifts and decreases in compensation levels where it can be demonstrated either party has not tried to resolve issues informally.’

Thompson does not favour replacing Acas entirely, suggesting instead that Acas conciliators could be trained to triage cases and given more powers to ‘weed out the hopeless cases’. She adds: ‘Why not use what we already have? The cost and delay in setting up a body would be better spent on improving the resources in the tribunal system itself, which has always been the Cinderella of the civil justice system.’

Clare Brennan, partner at Hunters Law, agrees, but believes that capacity within the tribunal system will remain an issue even with more use of ADR. ‘While Acas is not mediation in the formal sense,’ she says, ‘it already performs a similar early resolution function and is itself operating under significant pressure. Against that backdrop, it is difficult to see how greater reliance on mediation alone will alleviate the strain on the system without addressing capacity at that level.’

Other suggestions for speeding up the process include (ironically) the use of AI. Barnard says that while ChatGPT and the like are a ‘massive problem’ for over-inflating and complicating claims, there are uses for the technology which could save time and resources, such as summarising complex bundles, drawing up chronologies and so on.

She also points to work done by the Aneurin Bevan University Health Board in Wales, cited in the ELA report. The NHS board, which employs over 14,000 staff across a large area of south Wales, identified that harm was being caused not only to those being taken through a disciplinary process at work, but also to staff managing it and the organisation as a whole. By making disciplinary action a ‘last resort’ for a 13-month period, they avoided more than 3,000 sick days and saved nearly £750,000 across the trust. The report also points to 2021 research which estimated the costs of formal processes amounted to £2bn across the UK.

The divide over how to tackle the urgent crisis facing the ET may be smaller than it first appears – there is after all broad agreement on the problems, and the evidence suggests both investment and reform are needed. As Thompson says: ‘In practice, we all know something needs to be done as the delays will only increase. Without meaningful reform, the backlog will only deepen and confidence in the tribunal system will continue to erode.

Sian Harrison is a freelance journalist