Employment tribunal hearing delays: A temporary challenge or the new normal?

by Max Winthrop, Partner at Sintons LLP

I’m a bit of a compulsive hoarder when it comes to articles on law generally – employment law in particular – and in one of my periodic attempts at having a clean-out of such things I came across an essay from 1988 by a very distinguished academic author, Professor Keith Ewing, entitled: “The Death of Labour Law?” In the 90s and 2000s that might have seemed a bit of a premature announcement: far from expiring, the patient had in the intervening years been growing stronger and stronger. But over the last year or two, the patient has suffered a serious relapse – despite the uptick in workplace legislation thanks to the Employment Rights Act 2025.

There is at least the possibility that the longer time limit being introduced in October 2026 will have a positive effect on cutting claims. Three months is a short period in which to address what may be very complex issues: those acting for an employee may well feel compelled to issue tribunal proceedings to ensure limitation periods are not missed and then worry about the merits of a claim later.

The relapse is all down to delays in the tribunal system. A system that 60 years ago was predicated on informality, speed, cheapness and accessibility (to use the words of Sir John Waitem, a former president of the Employment Appeal Tribunal) is now beset with delays and complexities of the kind that Charles Dickens satirised in Bleak House.

I moved north at about the time “The Death of Labour Law?” was published and back then you could expect to get a one-day hearing listed in six weeks. Currently, in the Newcastle Employment Tribunal, a straightforward unfair dismissal case lasting not more than two days is taking about 12 months to list – and Newcastle is one of the luckier regions. With longer cases, particularly in those tribunal regions covering the larger urban areas, having to wait until 2029 or even 2030 is by no means unusual.

Prolonged uncertainty in knowing if a claim will materialise

These days it is not uncommon for international companies to post workers abroad. The secondments may be of limited duration, but while many will be willing to come back to the UK to give evidence this isn’t always the case. It is, of course, possible to give evidence via video. However, if a witness is abroad and proposes to give evidence in this way, then make sure you are up to speed with the practicalities.

Listing is only part of the problem. When my employment law career started an employer could be reasonably certain that once three months and a few days had passed after a dismissal and nothing further had happened, there would be no claim. Now, in part because of the extension of time limits through Early Conciliation (EC), it can be a year before a dismissed employee’s claim form (ET1) materialises – currently I have an ongoing matter where the claimant’s employment was terminated in August 2025, and although an EC was applied for and an ET1 lodged within the normal time limits, the ET1 has still not been served on the employer.

Of course, there is at least the possibility that the longer time limit being introduced in October 2026 will have a positive effect on cutting claims. Three months is a short period in which to address what may be very complex issues: those acting for an employee may well feel compelled to issue tribunal proceedings to ensure limitation periods are not missed and then worry about the merits of a claim later. This can actually lead to a claimant deciding to pursue a claim that is already up and running as a litigant in person (that is, representing themselves in proceedings), having invested perhaps financially and certainly emotionally in their claim.

Issues caused by delayed hearings 

Weaker cases less likely to be struck out

The problems this creates are obvious. In the past it was quite common to seek orders from the tribunal on, say, the disclosure of specific documents or further information. This could be done by the simple expedient of making a request to the tribunal, which would either make an order or refuse it. Now such tactics are probably only viable in those cases listed for a preliminary hearing for case management. That’s unfortunate: weak cases may be limping through to final hearings that perhaps should have been ended by being struck out.

There is some anecdotal evidence suggesting that the delays are deterring claims, although that deterrent effect has not impacted at all on the backlog. Some claimants, it is true, are throwing in the towel. But that brings its own problems: letting the delay wear down the claimant in the expectation of a modest settlement or a withdrawal has obvious attractions but claimants can be persistent.

Witnesses who leave your organisation

That is not the only problem that delays cause. Witnesses may move on. Although it is a common-sense point if you are involved in defending a claim, you’re going to need to ensure that if witnesses leave your organisation you will be able to keep in touch with them – and possibly factor in how co-operative they may be if there has been a change in their employer and thus, possibly, their priorities. Of course, in an extreme case where you have doubts about a witness’s willingness to attend a hearing it is possible to obtain a witness order but this is not without its drawbacks.

Getting a witness order is one thing – the order is not going to make a witness who perhaps two years on from the events their evidence will cover at best wants to move on and concentrate on their new role, and at worst may be actively hostile as a result of being forced to relive past issues – especially if in the intervening period they may have left under a cloud or been made redundant. Don’t forget too that if there are orders for exchange of witness statements (as there will be automatically in England and Wales), the witness will still have to cooperate with you in giving a statement and not just turning up at the tribunal.

Witnesses who are posted overseas

These days it is not uncommon for international companies to post workers abroad. The secondments may be of limited duration, but while many will be willing to come back to the UK to give evidence this isn’t always the case. It is, of course, possible to give evidence via video. However, if a witness is abroad and proposes to give evidence in this way, then make sure you are up to speed with the practicalities.

Be ready for a claim. This means: (1) preserving documents and other evidence such as CCTV footage; (2) taking a note from witnesses of events likely to give rise to a claim; and (3) keeping in touch with potential witnesses – and keeping them engaged in the process.

Helpfully these are now set out in guidance from the employment tribunal: Presidential Guidance – Taking oral evidence by video or telephone from persons located abroad. Among other things there needs to be evidence to show that there is no diplomatic or legal barrier in giving evidence from a particular location. Showing this can involve quite a bit of forward planning: at one time HM Courts and Tribunal Service would contact the Taking of Evidence Unit, who would then make the necessary enquiries of the country concerned. Now this duty falls on the party wishing to call evidence from abroad: the Foreign, Commonwealth and Development Office maintains a list of those countries that have given “standing permission” for oral evidence to be given remotely.

If a state isn’t on the list or has not otherwise given permission, the complexities increase. If the country covered is a signatory to the Hague Convention, it will be necessary to make contact with an appropriate official in that state to see if a “letter of request” is required. If it is (or the country concerned isn’t a Hague Convention signatory) the next body to contact is the Foreign Process Section at the Royal Courts of Justice, who will advise on any necessary consular process and fee.

It will be pretty obvious that these steps are going to be long and complex: clearly not something to be left until a week or two before the hearing. Do not assume that the ease with which video calls can be made has removed the need for very careful – and early – planning when it comes to witnesses wishing to give evidence from abroad. Note though that this is the position in England and Wales: the position is much simpler in Scotland where it is the employment tribunal that will give permission to hear a witness from abroad via video link. 

Parties who have died

But what if your witness is not reluctant – what if they have died? This sounds extreme but I’ve had cases where because of delays death has had to be factored into case management. There are two broad areas to be considered here: the situation where a witness dies, and the situation where the death is that of the claimant or respondent.

An employment judge can consider the weight to be given to a statement prepared by a deceased witness – and it’s up to the judge to decide whether to allow that evidence. Of course, if witness statements have been left until the date for exchange, and that date has pushed back to six weeks or so before a hearing perhaps months or now years into the future, there may not be statement to put before the tribunal at all.

This presents a particular problem with the long delays in cases: if a hearing is delayed it’s possible it might even be abandoned – so can the (sometimes significant) cost of the preparation of witness statements be justified? This might be a wasted expense – but equally with no statements at all then an otherwise weak claim may go forward without the possibility of producing contradictory evidence.

What if it is the claimant or respondent who dies? The death of an employee brings the contract of employment to an end, but if an (ex-)employee is pursuing an unfair dismissal claim there are specific provisions in the Employment Rights Act 1996 that permit the claim to continue. S.206 allows the personal representatives of the deceased to continue a claim, but if there are no personal representatives then the tribunal has powers to appoint an “appropriate person” to carry out this task – who could be a widow or widower or someone authorised by the deceased to act for them. 

The position resembles that in discrimination claims. There is, perhaps surprisingly, no provision in the Equality Act 2010 specifically dealing with death. Discrimination is a tort, however, and tort claims have their own statutory provisions which predate employment protection rights. Up until the passing of the Law Reform (Miscellaneous Provisions) Act 1934, death could extinguish certain tortious claims at common law. In Harris v Lewisham and Guy’s Mental Health Trust [2002] IRLR 320, the Court of Appeal held that a complaint of race discrimination was a “cause of action” for the purposes of the 1934 Act and hence a personal representative could be empowered to continue a discrimination claim.

What HR can do

There is some anecdotal evidence suggesting that the delays are deterring claims, although that deterrent effect has not impacted at all on the backlog. Some claimants, it is true, are throwing in the towel. But that brings its own problems: letting the delay wear down the claimant in the expectation of a modest settlement or a withdrawal has obvious attractions but claimants can be persistent.

In my view the better course is always to prepare for the worst and be ready for a claim. This means:

• Preserving documents and other evidence such as CCTV footage;
• Where possible, taking a note from witnesses of events likely to give rise to a claim – even a short handwritten note made within weeks of an event occurring will form a better foundation for preparing a detailed statement than relying, one or two years down the line, on what can then be recalled; and
• Keeping in touch with potential witnesses – and keeping them engaged in the process. Witnesses are unlikely to welcome a rather formal approach from a solicitor, possibly years after an event, when the possibility of giving evidence has never even been mentioned.

There are some excellent ideas for reform in the recent Employment Lawyer’s Association-sponsored Reimagining Employment Dispute Resolution and Enforcement by Sarah Fraser Butlin, Catherine Barnard and Maayan Menashe. But if tribunals continue to experience the current levels of delay, we may finally see what was predicted in 1988.