Preparation is prevention: Legal expert on avoiding the employee tribunal trap

The UK’s employment tribunal backlog continues to grow, with delays having soared by 25% in just a quarter, lawyers are warning the crisis may worsen. 

Our James Johnson, Partner and Head of Employment urges employers to act before problems escalate to litigation. 

“Claims are currently being listed until the end of 2026, and even some in 2027,” he explains. “We’ve not really seen things improve – one of the initial reasons was COVID-19, but we are also seeing other complications, including difficulties  in recruiting qualified employment judges to hear cases.” 

The impact of the backlog on employers 

Tribunal delays have introduced challenges not just for claimants and respondents, but also for legal professionals. 

“It’s very difficult to prepare cases now, because you are attempting to prepare for something that probably won’t be heard for two years,” he says. “The delays affect collation of evidence as people’s recollections of events change over time, while documents and physical evidence are being lost."

“Secondly, it impacts the advice we give to our clients, in relation to both individuals and employers. We have advise them that if they go down a certain route, they could end up in tribunal litigation, and then they have this hanging over their heads for the next two years."

“So often we’re advising on taking more proactive action to ensure they’re not ending up in tribunal proceedings.” 

Five proactive steps to prevent employment tribunal claims 

James outlines five key strategies that can drastically reduce the likelihood of a tribunal case arising: 

1. Establish clear procedures from the outset 

Having proper procedures in place from the outset greatly reduces the risk of tribunal claims. Policies like anti-bullying procedures, disciplinary and grievance procedures and equality and diversity policies, can protect from claims.

They also give employers a defences, and give employers and employees internal routes to resolution.

2. Train employees and managers effectively 

Implementing training to both employees and managers is highly effective. Induction processes are really important, and these will become even more important when the government’s ‘Day 1 Unfair Dismissal Rights’ take force. 

They ensure employees know from day one what correct behaviours need to be followed, what their employer’s values and standards are, and also make sure they know the ways in which the employer deals with workplace disputes.

Also, employers should make sure that managers are trained and given the necessary tools to ensure they can nip workplace issues internal in the bud, for example, performance issues, lateness or behavioural issues, resolving the issue without ending up in the employment tribunal system.

3. Use well-drafted employment contracts 

Having a well-drafted employment contract will work wonders in terms of making sure disputes don’t arise. Often, disputes may arise through claims relating to missing or inadequate contracts of employment.

You should make sure both parties know exactly where they stand.

4. Build trust through communication 

Building the trust relationship with employees is of vital importance. Good communication, ensuring employees feel heard and respected, and that they’re being treated honestly and fairly, works wonders when ensuring situations are dealt with quickly, amicably and effectively.

5. Maintain thorough and accurate documentation 

Finally, in a significant number of cases where an employer says ‘we always had concerns about this employee’, they have no supporting documentation to show these concerns were raised with the employee.

Either they’ve not tackled the issue or not documented the action take. Having clear documentation on an employee’s record, including any formal action, informal counselling or welfare discussions, appraisals, disciplinary records, and the like, all help reduce the chances of claims being brought by employees. 

Avoiding litigation after disputes arise 

When prevention isn’t possible, James urges early, strategic resolution. 

“One of the key areas when trying to prevent employee litigation is what are known colloquially as “protected conversations”, which are off-the-record conversations with the employee whereby they’re offered the opportunity to leave their employment and release any claims that they may have."

“We also have a system in the UK called Acas Early Conciliation. Acas will hold confidential discussions between the employee and employer to see if a resolution can be reached through a binding settlement before a claim is issued to the tribunal." 

“Acas also provide the same service all the way up to when the claims are eventually heard by a tribunal." 

“Finally, there are tribunal led mediation and judicial assessments available when claims are issued. Here, a judge will look at the case and will try to assist the parties in reaching the terms of a settlement to avoid lengthy hearings.” 

Final advice 

James’ final recommendation is to consider settlements before the case reaches its most resource-intensive stage. 

“In my experience, often claims come from a point of principle, with both parties set in their ways and they don’t feel as though they’ve each done anything wrong,” he reflects. “Employers should consider, however, at a preliminary stage, an out-of-court settlement. They can save a considerable amount of time and cost.” 

“Often what we’re finding is that once the case gets fully prepared, that’s when the cases are settling. So businesses should be looking at these out-of-court settlements to save themselves resources and time much earlier than they are currently.”

How can we help?

If you need support with employment tribunals or are in need of advice on how to preventing these, get in touch with our specialist employment law solicitors. 

Contact our team by telephone on 0330 123 1229, complete our contact form. or send us an email via info@smithpartnership.co.uk.