Welcome to this Mills & Reeve employment podcast.
I'm Michelle Clarke.
And I'm Orlagh Finnegan, and over the recent years, it's perhaps become a lot harder to ignore the increase in employment tribunal claims and the prolonged delays that have been causing havoc in the tribunal system. The businesses who have historically seen tribunal claims, but perhaps in manageable numbers, have likely seen notable increases, and even those businesses for whom claims weren't commonplace are perhaps starting to see more claims than they'd usually expect to see.
The Ministry of Justice have now published the most recent tribunal statistics, so Orlagh and I, when we were contemplating what to talk to you about this podcast, decided to dedicate this one to the current numbers in the tribunal system and to share some of our predictions as to how we may see employers and employees adapt to a system that's under existing and also ever-increasing growing strain.
So, to get to the starting point, Orlagh, the statistics make for quite interesting reading, don't they?
Yes, so on the 12th of March 2026, the Ministry of Justice published the employment tribunal statistics for the period of October to December 2025. So, the statistics show actually an eye-watering numbers.
So, the tribunal received a total of 23,000 new claims during the period.
Staggering.
So, 13,000 of those are single claims, which is an increase of 54% compared with the same quarter in the previous year. 9,500 claims that are part of a larger claim consisting of multiple claims, so that's generally multiple individual cases against a single employer, so that's a decrease of 43%.
This is not massively unusual, though, as the number of multiple claims can fluctuate and decrease at different times. Another kind of eye-watering statistic is that alongside higher newer claims, there has been a decrease in claims concluded during the period, which have added to the growing backlog of the tribunal that we're all pretty familiar with.
So that's 5,700 single claims, which is a decrease of 34%, and 2,600 multiple claims were disposed of, which is a decrease of 49%. So, this shows that during the period, the employment tribunal received a lot more claims than what they were able to dispose of, and the statistics show a growing backlog of 523,000 open claims in total at the end of December.
So yeah, eye-watering. It's almost crazy numbers, isn't it? It's the sort of thing that because the two of us will deal with a lot of employment tribunal claims for our clients, that it's certainly something that we see day in and day out. And I think what's almost a little bit worrying is that we're already expecting those claim numbers to increase even more as we start to see the effect of the Employment Rights Act 2025 changes, particularly as we step into 2027.
Some of the changes that we know are coming in will almost certainly push up the existing case numbers, and possibly by quite a long way as well. And I think the big example will be the shift to a six-month continuous service requirement for unfair dismissal claims because that's going to open up a possible new avenue for claims for a big group of people who've previously, or at least now, wouldn't have that option available to them.
And there's probably other aspects as well that we're thinking is probably going to see an increase in claims as well. Yeah.
So, on the unfair dismissal line, so you've got the removal of the cap on the compensatory awards in unfair dismissal claims, and that could obviously see employment tribunal claims becoming a more attractive option, especially for groups of employees who are not currently using it as much.
I suppose you've got higher earners from whom the removal of the cap might mean that an unfair dismissal claim is a more valuable option when the potential losses won't be subject to that maximum. It wouldn't be a surprise to see that group of individuals at least give some thought to whether now they might think it's not worth my time and effort to try and go to tribunal when we've got that cap there.
Where if it's removed, it might then become a much more attractive option. We probably are going to see at least clear thought given by that group to actually bring in a claim. So the future picture is perhaps a bit of a worrying state, but even now the statistics perhaps add a bit of colour to the picture that those of us who are already dealing with the system are already seeing and experiencing of a system that's under enormous pressure and already struggling to cope with the demands upon it, and what we're expecting to be even more pressure as we move into 2027.
I think it's interesting to think about how the users of the tribunal system might start to change and adapt their own approaches, whereas perhaps previously it might have been done in just within a year, they could now be looking at time and energy going into the two, three, four years category. So we'll take a short break here, and when we come back, Orla and I will share some of our predictions of what we might start to see in the tribunal system and how people approach it.
So welcome back to part two of this Mills & Reeve employment podcast. Now, Orlagh, from our own experience of supporting clients with employment tribunal claims, we're already seeing claims take a very long time to, to reach the endpoint, aren't we? Yeah, absolutely. So we've been receiving some hearing dates well into 2027, and if not 2028 already.
So I think from start to finish, cases have taken several years to go through the process and in some cases, or at least at some of the venues, some of the tribunals, they've actually been able to free up some time for relatively quick hearings very close to when the claim has been brought. So yeah, quite a fluctuation.
It does feel that way, doesn't it? And you can almost predict that if you've got a claim, and it tends to be the southeast tribunals that struggle the most with the claims, that perhaps you're looking at the long listing, then there are some venues, it's a surprise almost that you get a quick preliminary hearing and then all of a sudden you've turned up with dates to avoid going into 18 months and then you're told, "Oh, actually we can fit you in in the next six months."
There are those little pockets where you can have much quicker hearings, but unfortunately it very much feels like the days when we might have seen a claim taking as low as six months or with up to 12 months from start to end. I suspect what we're going to see, if we're not already seeing it, is how some employers and also employees might adapt to the new normal of the long-running claim.
And I think if we're going to be making predictions, as I say, with our crystal balls today - of what we think claimants and respondents might do to react to, or else try and work within the waiting game we're seeing within employment tribunal claims, I think settlements got to be the good place to start, hasn't it?
So I suppose when employees are already aware of conflicts between them, it's not unusual to see different types and options they might use to reach settlement before they get to tribunal. So, you know, it could be through a protected conversation or without prejudice discussion before that conflict ever ticks over into that pre-claim stage.
So I suppose if a dispute reaches pre-claim, then early conciliation may be the preferred option by either or both, and they may see the support of an ACAS conciliator as actually quite beneficial, particularly I suppose if the talk between both sides is strained or they're in a broken-down situation.
The government increasing the early conciliation period from two to 12 weeks back in December may give the parties more time to try to conciliate before a dispute reaches the tribunal's doorstep. So, you know, the figures from ACAS show that early conciliation is already well used, and their published figures from 2024 to 2025 showed 117,000 individual disputes which were handled by ACAS.
So yeah, again, crystal ball, but I predict maybe a shift even further in favour of early resolution before a claim is brought. However, I suppose ACAS are also experienced high numbers of early conciliation and may themselves already be under pressure to efficiently assist with conciliation.
That there's always that element, isn't there? And then I think also perhaps holding hands with the move towards settlement is perhaps we going to see a shift in how employers actually approach valuing their expectation when it comes to the settlement figure as well? Because, like, it's probably fair to say that historically on the employer side, if you were at the early conciliation or pre-early conciliation stages, and you were looking purely at commercial settlement, the valuation might have only taken into account the cost savings that they're going to be making against the monetary cost of defending claims, and the numbers were going to be the biggest element in that, what can we save versus what we have to spend?
Given the prospect now of having to put in that time and that energy into a claim running into two, three more years, we might see a shift towards valuations by employers moving away from pure monetary to also factor in the non-monetary elements. And so you have those time cost elements such as your witness time, especially if they've left as well, pressure on HR and other internal stakeholders, but also having to stay engaged in a dispute for a much longer period of time.
On the flip side for employees, as much as the threat of a claim is always going to be the foundation of their settlement strategy, they too might also factor in the delays in their claim being heard. So even where you've got an employee who's 100% committed to a claim, very confident in the success of that claim, knowing that it could take quite a long time before they see a judgment or any award, they might also start to factor in when they're thinking about a settlement expectation and that balance piece of, am I comfortable with the delay, or do I want to resolve it now?
And factoring it in when they think of, well, what sum would I see as being acceptable to bring this to an end now, I may not have to go through that long process. So I would probably anticipate us seeing more pragmatic, I guess, approaches towards settlement and evaluation of expectations on both sides to perhaps try and avoid prolonged litigation.
Yeah, and I suppose settlement won't always be the preference or an option in some situations, so knowing that it will take a long time for a claim to be resolved might actually mean that we see the way that parties approach claims evolve, like you say. So in our experience, we're seeing tactics that are less commonly used previously.
We've seen definitely an influx in applications for interim relief where it applies to a claim. Longer list of issues is definitely on the rise, and applications may join proceedings, including application to amend claims. So this may mean due to an increase, especially of AI and ET claims, with employees making use of AI to identify the, the claims they might have, how the ET process works and applications that could be made.
In claims of the discrimination or whistleblowing element, we're seeing long lists of complaints being pursued by employees, which in some cases could be through AI identification. That can mean obviously long lists of issues, longer hearings, more delays as the tribunal tries to accommodate more multi-day hearings.
On the flip side, from an employer perspective, if we see more multi-issue claims, we could see more pragmatic approaches, I suppose. So for example, instead of challenging applications to amend in their entirety, could employees take a pragmatic approach and challenge only where there are clear grounds to do so?
On the other hand, could we see some employers taking more robust approaches to try and limit the complaints, so particularly where claims are being seen as weak? For example, we may start to see employers making use of the longer time frames in claims to seek open preliminary hearings or to look to strike out and deposit orders where there are grounds to pursue.
So there's a whole host of different options or preferences there that could take place. Yeah, I think you're right. It's almost that we'd expect to see a potential change in mindset as well, whereas now or even a few years ago, for both parties, the question might have been how do we win this, whereas this might now evolve to how do we manage our time and costs and energy over two, three years of litigation.
And so I wouldn't be surprised if it hasn't already happened from a business perspective. There's probably going to be a greater number of HR-led discussions with boards and senior stakeholders about why a quick or cheap fix is no longer a workable option. And there might also have to be some thought to future-proofing as well, and I guess an example's going to be data-related policies.
When you first started writing these and you thought, "A year, we'll only have to hold the documents. It'll be a year, for a process for tribunal," and now all of a sudden it's two, three years. Do we need to revisit those sorts of policies to make sure we've got the documents there as well? So there's quite a lot, and I think we might start to see maybe a favour towards case preparation being much earlier in the process, whereas some businesses and some individuals as well might think, "Let's push that back," like the meatier parts of the preparation of a claim until later on, see if early resolution's possible, whereas if you've got the potential of staff turnover, meaning your witnesses are gone or just the natural fading of memories, I do wonder whether we might start to see parties trying to early prepare the cases even before directions are being made.
And I suppose as much as parties might look to change their approach to better manage delayed claims, we're expecting to see tribunals remain under strain for quite some time yet. Yeah, I'd agree with that, and I think one thing we'd probably be confident to say that we're not going to see any time soon is the return of the tribunal fees for bringing a claim.
If people remember back in October, I think for sort of two or three days, there was a short-lived flurry when it was reported in the press that the government were looking at reinstating the fees, but they very, very quickly said that's not going to be happening. So it seems very unlikely- Sure they're going to be reintroduced by the current government. But even future governments, it's that weighing up exercise in terms of what do we want to achieve and can fees actually achieve that against making sure they don't unfairly restrict access to justice in a system where it's under strain and under pressure, and it looks like it's certainly going to see that stay that way for a little while.
But maybe on the other side of that, we're going to see people perhaps change the way they approach tribunal litigation. But that brings us to the end of this Mills & Reeve employment Podcast. So on behalf of myself and Orlagh, we'd just like to thank you for joining us for this episode. Just a flag, our specialist employment team produce a podcast monthly on the hot topics in employment law and changes that we're expecting to see, so please do follow or subscribe to the podcast so that you're not missing out.
And if you'd like to keep the conversation going and share your own predictions with me and Orlagh, please feel free to reach out to us on LinkedIn or through our contact details on the Mills & Reeve website.