Employers face a year-long wait for Employment Tribunal claims

October: the month of Halloween and all things spooky. It is perhaps unsurprising, then, that this is the month in which a seismic change for employers has occurred.

From 1 October 2026, the limitation period for individuals to bring a relevant Employment Tribunal claim against their (ex-)employer doubles from three to six months, pursuant to section 152 of the Employment Rights Act 2025.

This directly impacts how long employers wait before knowing if they are embroiled in litigation.

This change affects relevant claims including unfair dismissal, discrimination, harassment, whistleblowing detriments, victimisation, working time, TUPE and unlawful deduction from wages. The limitation period for equal pay and statutory redundancy payment claims remains at six months.

The upshot of this change is that individuals now have a very long time to decide whether they wish to sue their (ex-)employer and, if they do, to act. In turn, the practical reality is that employers will now wait around one whole year to know whether they are on the receiving end of an Employment Tribunal claim.

This lengthy wait is because of the timings of additional processes that are required prior to filing a claim in the Employment Tribunal and associated practical points, all of which are further compounded by this recent change in the law. In particular:

• The limitation period for most Employment Tribunal claims is six months. Add these six months to the calculator
• An individual wishing to bring Employment Tribunal proceedings against their (ex-)employer is required to initiate ACAS early conciliation before filing a claim (in most cases). Early conciliation pauses the clock (ie ‘pauses’ the six-month limitation period) and runs across a default 12-week period. However, conciliators are few and claims are many. In our experience, ACAS is not often able to begin conciliating a potential claim until week six or seven of that 12-week conciliatory period at the earliest because of a lack of capacity. Thus, the full 12-week default conciliation period is increasingly becoming the norm. Add 12 weeks/three months to the calculator: we are now at nine months
• From there, a potential claimant is typically afforded around one calendar month following the conclusion of ACAS early conciliation (subject to when early conciliation was initiated) to file a claim. Add one month to the calculator: we are now at 10 months
• There is an unprecedented backlog of claims in the Tribunal. Recent statistics attribute this partly to the use of AI generating more claims of greater length and complexity. This backlog creates delays: an ET1 may sit with the Tribunal for one or two months before it is reviewed, accepted and issued to an employer by post. Add two months to the calculator. We are now at one whole year, and the employer has only just seen the claim form.

How can employers protect themselves?

One year is a very long time – and that is only the starting point of formal proceedings. This poses a significant evidential risk to employers. Staff who recall key events leave. Memories of staff who remain fade. Emails are deleted every three or six months as part of cyber security measures. Teams and Slack messages are automatically cleansed after 90 days. Data retention policies affect personnel files. CCTV footage is overwritten month by month.

So, what can employers do to be able to robustly defend an Employment Tribunal claim that, one whole year later, has just landed on their desk? If an employer has a gut feeling that someone left its business on bad terms and there is a litigation risk, don’t ignore it. Even if an employer’s spider senses are not tingling, basic evidence gathering and reliable (and reasonably retained) record keeping form best practice.

Proactiveness and evidence collation are key. Employers should:

• Obtain witness statements, even in draft form, from key witnesses such as the ex-employee’s line manager. Even a rough note from the line manager (written in the first person) and stored on the individual’s personnel file is better than having nothing on file at all and risking the witness later leaving the business or failing to recollect events accurately, particularly before contemporaneous evidence has been harvested
• Review their data retention policy and, where appropriate, take action to extend the timeframes for automated and/or manual deletion of evidence (for example, Outlook calendars, emails, Teams and Slack messages, WhatsApp messages/team group chats, personnel files including appraisal and one-to-one forms and medical information/occupational health referrals or refusals to be referred).

The best and most supportive employer is going to face an uphill battle in an Employment Tribunal if it does not have access to the evidence (documentary and witness) needed to exonerate it.