Enforcement of new rights in the Employment Tribunal
The economy may be stagnating with redundancies and a difficult job market but on the face of it there is good news for employees, trade unions and staff associations with the coming into force of the Employment Rights Act 2025.
Key changes in the law
As of January 2027, the qualifying period for issuing unfair dismissal and most other claims in the Employment Tribunal is reduced from two years to just six months and the statutory cap on the amount of compensation recoverable for unfair dismissal is removed completely. Since October 2026 employers must take all reasonable steps to prevent sexual harassment of their workers (not just reasonable steps), and they can be liable for harassment by third parties such as clients and customers. Furthermore, as of February 2026 complaints of sexual harassment are qualifying disclosures under the whistleblowing legislation which means that whistleblowers who make disclosures of sexual harassment are protected from detriment and unfair dismissal. Moreover, any provision in a Non-Disclosure Agreement between a worker and employer which seeks to stop the worker from speaking out about harassment and discrimination they have experienced is voided.
Zero hours contract workers are given the right to guaranteed hours, reasonable notice of shifts, and compensation for short notice shift cancellations. (These rights will be enforced in due course by the new Fair Works Agency.) Employers rejecting requests for flexible working may do so for one of eight acceptable reasons and must explain why. These provisions are coming into force in 2027, when employers with 250 or more employees will be required to publish action plans concerning menopause and gender pay gaps.
There are also a range of measures to support trade unions: for example, since February 2026 dismissal for taking part in industrial action has been automatically unfair and the financial penalty for failures in collective consulting doubled in April 2026. Collective consultation redundancy rights will be expanded in 2027.
Enforcement in the Employment Tribunal
The crucial question is: how much of a difference are these changes going to make to employees? If the legislation is not effectively enforced, it is toothless. Between April and June 2026, the number of open tribunal cases exceeded 70,000, the highest level since records began. The number of new single and multiple claimant cases significantly exceeded the number that were concluded in this period. The Employment Lawyers’ Association (ELA) estimates that the phased introduction of the Employment Rights Act 2025 during the coming year will increase the number of cases in the system by a third.
The system is under such strain that practitioners refer to a post code lottery, the same phrase used to describe timely treatment under the National Health Service. Claims issued in the north of England or Scotland generally reach a conclusion within eighteen months. Those issued in London and the south of England can take as long as five years from the acts complained about, a period when a dismissed person may have nothing to live on, evidence deteriorates and witnesses die. Cases have been struck out because the judge decides that it is no longer possible to have a fair trial.
There are a combination of reasons for the logjam. The proportion of discrimination and whistleblowing claims has risen to 70% of the Employment Tribunal’s workload. They are complex, document heavy and lengthy to determine. Artificial Intelligence, which is supposed to reduce workload, is increasing the workload of employment judges. There is virtually no legal aid for Tribunal proceedings and litigants in person are keen to take advantage of Artificial Intelligence to plug this gap. They are impressed by the lengthy documents it produces: 30 to 40 pages rather than one or two. This means that judges must read prolix documents that contain significant amounts of irrelevant information, especially as they must determine every issue brought by a claimant and cannot reduce the issues at the outset.
Sarah Fraser Butlin KC, co-author of Reimagining Employment Dispute Resolution and Enforcement has said: After your family, your job is your most important relationship in your life. When things go wrong you want a quick, effective resolution. The employment tribunal system was set up to deliver just that. But no more. Cases are now being listed in some areas for 2030. This is not access to justice. Radical reform of employment tribunals is needed urgently….
Changes and suggested changes to the Employment Tribunal procedure
The Employment Tribunal is addressing the increased demands by recruiting more judges, introducing new case management systems and making more use of remote hearings. The preliminary hearing questionnaire asks parties whether they will agree to the full hearing taking place remotely.
The ELA recommends using Artificial Intelligence for an initial evaluation of claims, rather than as a means of expanding them, and splitting the cases into different tracks depending on their value and complexity, broadly reflecting the tracks used for the allocation of personal injury claims in the civil courts.
Simple claims with a value of less than £20,000 would be allocated to the low value track for determination by a legal officer rather than a judge, unless a judge was specifically required. There would be no fees or costs.
The middle track would be used to determine cases with claims of up to two years’ loss of earnings. The judge could limit the issues to be tried, and the hearing would last a maximum of five days with strict limits on the amount of evidence. Judges could assess the prospects of success at a compulsory early neutral evaluation, with financial penalties if offers are made and not beaten, reflecting the part 36 offer procedure in the civil courts, where cases are more often settled than contested to trial.
It is recommended that high value and complex claims, such as those including claims for over two years’ loss of earnings and/or multiple claimants, be processed like a claim in the High Court under the Civil Procedure Rules. The judge would hand down a written judgement and make a costs order. The making of costs orders is likely to make a major impact on the conduct of complex litigation in the Employment Tribunal.
Mediation and apology
The introduction of compulsory mediation is also advocated, reflecting the use of mediation in family disputes. In practice, even if a dispute is not settled at mediation, the process focuses minds and settlement is generally achieved a relatively short time afterwards. This is not least because during the mediation the claimant may have received from their employer what they wanted from the outset: an apology. Mediation is often the best route for claimants to explore when trying to achieve an early and realistic settlement and it is likely to remain so under the new regime.
Points to consider
Do you evaluate whether an early apology is indicated and how that may pave the way to an early resolution?
When did you last resolve employment litigation through mediation?
Do you routinely consider mediation as an option both pre and post proceedings?
Mariel Irvine
1 October 2026
This article was first published by Chambers and Partners.
