Employment Tribunal trials and tribulations: an employer’s toolkit

Employment Tribunal claims are rising fast, and even the most supportive, reasonable and policy-abiding employers are now facing litigation far more frequently than before.

Historically, a Tribunal claim would be a hypothetical risk; it’s now an inevitability and part of the parcel of employing individuals.

To put this into context:

• New Employment Tribunal claims are at their highest post-pandemic. Complex claims, such as discrimination claims, are also increasing, placing huge pressure on the Tribunal system. In some regions, final hearings are being listed well into 2028 and 2029. Some discrimination claims may have been issued to circumvent employees’ lack of two years’ service, which prevented them bringing an ordinary unfair dismissal claim. The Employment Rights Act 2025 will reduce the minimum service requirement to six months from January 2027, but this shift won’t immediately reduce the number of new claims being issued. In reality, more individuals will be able to issue proceedings, so claims are likely to increase.
• ACAS has seen a 26% rise in early conciliation requests, again largely involving complex discrimination claims. This increase has created a five-week wait for employee complaints to be allocated to a conciliator. The early conciliation period was recently doubled from six to 12 weeks. As a result, employers may be unaware of a potential claim for almost three months after an incident or dismissal – or, worse still, may not be aware of a claim at all until an ET1 form arrives nine months or more later. Claimants don’t have to involve their employer in ACAS early conciliation, so a 12-week conciliation window combined with an overstretched Tribunal system means almost a year may pass before an employer becomes aware of litigation.
• The Employment Tribunal service is recruiting heavily to address judicial undercapacity. In London and the South East alone, 36 new salaried judges are being appointed, highlighting the scale of the challenge.

Given this landscape – and the growing use of AI technologies such as ChatGPT by litigants in person – employers are now operating in one of the most challenging environments in recent memory.

While employers can’t prevent Employment Tribunal claims being issued against them, they can take proactive steps to ensure they are best placed to successfully defend a claim or minimise the value of a successful one.

Your employer toolkit should include:

1. Creating a paper trail
   Ideally, all employers would keep a paper trail of all meetings, decisions and discussions. This isn’t realistic, but when dealing with key issues – such as grievances, dismissal decisions, performance concerns, disciplinary processes and health, disability or occupational health concerns – taking the time to ensure a clear paper trail is in place is invaluable when defending a claim.
2. Gathering evidence promptly
   With many claims now taking 18 months to three years, evidence can be missed or accidentally destroyed, memories fade and witnesses leave the business. Collating evidence and drafting basic witness statements as soon as the claim is received gives you the best possible chance of successfully defending a claim later down the line.
3. Risk assessing exposure
   Consider your legal, financial and reputational risks as soon as you suspect or receive a Tribunal claim. Think about the type of allegations being raised, how litigating these concerns in a public forum may impact the business, whether there are wider concerns (such as whether a report to the Charity Commission or referral to the Financial Conduct Authority is warranted) and whether this may affect a future sale. Forewarned is forearmed, and understanding the risk early helps shape a stronger defence strategy.
4. Seek specialist legal advice quickly
   Time is of the essence when assessing a Tribunal claim. While taking legal advice before receiving a claim is ideal, it’s not always possible. Reaching out to specialist employment litigation practitioners promptly ensures your defence strategy is clear, comprehensive and likely successful.
5. Exiting employees
   Consider including reasonable cooperation provisions in settlement agreements. A reluctant witness doesn’t typically make for a persuasive and helpful one, but having the contractual option to require an ex-employee to attend a Tribunal and give witness evidence is often better than having no mechanism at all. Consider inserting reasonable cooperation provisions into your settlement agreements if you haven’t already.
6. Insurance checks
   Check what insurance policies you have in place to understand whether legal fees for defending Tribunal claims are covered. Insurers may request that you instruct a panel solicitor; however, you can challenge this and may be able to persuade the insurer to agree to your preferred solicitor, subject to negotiation regarding fees and the insurer’s contribution levels.
7. Managing stakeholder expectations
   Does being on the receiving end of a Tribunal claim create difficulties insofar as reporting to a board of trustees or strain a connected commercial relationship? Is there a related commercial agreement that includes some form of indemnity protection, meaning the employer may be on the hook for another respondent’s legal fees as well as its own? Tribunal litigation shouldn’t be considered in isolation; adopt a holistic approach when considering strategy and how best to manage stakeholder expectations. This is particularly the case given parties to a claim litigate in a public form with most judgments readily searchable online.
8. Settlement
   Whether you’ve just received an ET1 claim form or are days away from a final hearing, settlement is possible from pre-action right up to, and at, the final hearing. Given the risks outlined above, you should keep settlement in mind as a potential option for eradicating litigation at every stage.

HCR Law’s Employment and Immigration team are specialists in defending employers facing Employment Tribunal claims. Our Employment Rights Act 2025 Hub also offers practical guidance on navigating upcoming legislative changes.