Employment tribunals on the brink of collapse

Labour Ministers recently caused somewhat of a legal stir by suggesting via a Guardian news report that it is considering the re-introduction of Employment Tribunal fees in order to help with budget pressure and the backlog within the tribunal system.  Unsurprisingly the Trade Unions were first to object (loudly) on the basis that – apparently £55 – would “price workers out of accessing justice”. However, within a couple of days, it was already a moot point as David Lammy, the new Lord Chancellor and Justice Secretary on 9 October 2025 moved to quickly quash this proposal, stating unequivocally that the government would not be progressing the plan to charge fees to bring Employment Tribunal claims. 

This has, however and rightly, placed a long overdue spotlight on the Employment Tribunals (and indeed the English court system as a whole) since it is heading towards a catastrophic breakdown having been in crisis for years; not assisted by the 2017 fees repeal and then the covid-19 pandemic in 2020.  Unless something is done – and done quickly - it’s only going to get worse since the implications of the enhanced worker rights being implemented by the imminent Employment Rights Bill (ERB) which start next year - including “day one” rights and doubling the time limits to bring a case - will undoubtedly cause a further deluge of claims.

Labour’s short-lived proposal

Even ACAS is now creaking under the weight of the amount of Early Conciliation Applications.   The process gives disputing employers and employees up to 6 weeks (42 days) to attempt to settle. It’s difficult to do this, however, when ACAS, due to its own lack of resources, is now only able to allocate Conciliation Officers about 5 weeks after an application is made.  Clearly, that system – the precursor to lodging a claim, is now failing so badly yet more cases are ending up in the Employment Tribunal. 

Up until March 2025, there were 45,000 single open cases and it’s now taking at least 2, often up to 3 years for claims to reach a final hearing.  It is unclear how such excessive wait time can, in itself, be in any way considered appropriate “access to justice”.  Practitioners are already having to advise employee and employer clients alike of the delays, and that their ability to seek justice is therefore subordinate to this. Further, the longer a process is, generally the more costly it is. 

In any event, we have tried fees previously and know that they largely do not work to help ease the strain on the Employment Tribunal system. In 2013 when first introduced, fees to lodge a claim etc were up to £1600 and even at that level did not provide the envisaged additional monies for the pocket of the justice dept as they were so costly to administer. Indeed, £55 is such a far cry from the 2017 level of fees, it is difficult to see how the monetisation argument could have any viable basis for consideration now. 

Reform or ruin

What is becoming apparent from this Labour government’s actions in the employment sphere is that there is a direction of travel intending to get Trade Unions and their influence back into businesses, the suggestion being the unions can “help resolve issues in the workplace” without the need for litigation. It is also of note that the ERB has a range of new “hoops” which employers will have to jump through to comply with this new legislation…the exemptions for which generally involve recognising and having workplace arrangements with unions. Some of us still remember the 70’s and 80s and the havoc (not resolution) that was wreaked then, which is perhaps a historical lesson to remember.

Notwithstanding the above, meaningful reform is needed, and it really is needed now. Clearly fees are not the answer. In an effort to save our crumbling legal structure, the Ministry of Justice has stated that it is going to hire more judges and tribunal members. Again, all very well - but the process normally takes some 2 years and the remuneration for such roles is generally much lower than can be earned by a senior solicitor or barrister. The status may be attractive as is the desire to make a difference - but there is little financial motivation to move into the judiciary.

However, there remain a number of potentially applicable actions which could help the Employment Tribunals actually offer access to justice and reduce the backlogs, and which should be considered. 

These are:

1. A longer ACAS EC period (ie. 3 months) and more resource piped into that entity to cope with the number of applications (and settle more of them).
2. A better initial ET “sift” system to remove claims which are clearly out of time or have no prospects of success/are without basis.
3. Engagement of senior lawyers (as consultants) to review and respond to certain levels of (written) applications and requests from parties.
4. A greater (mandatory?) requirement for parties to undertake Judicial Assessment or Judicial Mediation – preferably as a step once the ET1 and ET3 have been filed and before Case management is scheduled.
5. A different tier of “Judges” – given shorter training and tasked to deal with single claim matters and uncomplex claims.
6. Widen the scope of claims able to be dealt with by an Employment Judge sitting alone, thus leaving the 3 person panels for only the lengthy and more complicated matters.
7. Consider the imposition of a suitable and appropriate costs regime – which should reduce unmeritorious or vexatious claims.

What happens now and when the ERB comes into force remains to be seen – no action appears imminent so what this means for the future of Employment Tribunals and our justice system is presently and unfortunately, anyone’s guess. 

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