Employment Tribunal Backlog Grows Amid UK Workers' Rights Reform

The scale of the backlog

The open caseload sitting in front of the Employment Tribunal has climbed above 49,000, roughly double the pre-pandemic norm, and the average wait from a claim being lodged to a first substantive hearing is now 12–18 months across most English and Welsh regions. London Central and London South are the worst affected, with multi-day discrimination hearings sometimes being listed 20+ months out.

Two forces are driving that. The 2017 Supreme Court ruling that abolished tribunal fees permanently reset the volume of claims upward. The pandemic then created a backlog that HMCTS has never fully cleared, and judicial recruitment has consistently lagged the rate of new filings. ACAS Early Conciliation catches a share of disputes before they ever reach the tribunal, but the residual volume — particularly around unpaid wages, holiday pay, unfair dismissal and discrimination — keeps growing.

For hospitality specifically, the picture is worse than the average. The sector accounts for a disproportionate share of unpaid-wages and holiday-pay claims because so many contracts are casual, so many pay calculations involve tips and service charge, and so many exits are handled informally without a written process.

Why the backlog matters right now

A claim that would once have been resolved in three to six months now often sits open for over a year. During that time the employer carries the legal cost, the management time, the reputational overhang and — crucially — an accrual for the potential award on the balance sheet, regardless of the eventual outcome.

For small operators, a single unfair dismissal or wages claim tied up for 14 months can cost more in management distraction than the settlement itself. GMs end up spending days pulling rotas, WhatsApp threads and till reports from a period they only half-remember. Legal fees on a defended case routinely reach £15,000–£30,000 before you get anywhere near a hearing, even when the underlying claim is weak.

And the length of the delay changes the strategic calculus. When a hearing is 18 months away, claimants have far more time to gather evidence, add causes of action, and — often — leave the industry entirely, which makes attendance and reconciliation harder. Employers who might once have settled a marginal case in month three now find themselves fighting the same case in month fourteen, when memories are gone and paperwork is patchy.

What the Employment Rights Bill actually changes

The Employment Rights Bill, working through Parliament in 2025 with staged commencement through 2026 and 2027, is the biggest single expansion of individual employment rights since the introduction of the National Minimum Wage. Three of its provisions matter most for hospitality.

First, unfair dismissal becomes a day-one right, subject to a statutory probation period during which a lighter-touch dismissal process will apply. The consultation has landed on nine months as the likely probation window, with a simplified fair-process test inside it. In practice, this means that from the commencement date, effectively every employee — including the seasonal commis chef who lasts six weeks — has a route to a tribunal claim if they are dismissed unfairly.

Second, qualifying zero-hour and low-hour workers gain a right to be offered guaranteed hours reflecting the hours they have actually worked over a reference period (expected to be 12 weeks), plus rights to reasonable notice of shifts and to compensation for shifts cancelled at short notice. For hospitality operators who use zero-hour or short-hour contracts as the default, this is a structural change to the labour model rather than a paperwork tweak.

Third, fire-and-rehire is effectively banned as a route to changing terms, with narrow exceptions where the business would otherwise fail. Combined with expanded protections against detriment for asserting a statutory right, the overall effect is to shift a meaningful amount of leverage from employer to employee at every stage of the relationship.

• Day-one unfair dismissal rights, subject to a statutory probation period
• Guaranteed-hours offers for workers on qualifying zero-hour or low-hour arrangements
• Right to reasonable notice of shifts and payment for shifts cancelled at short notice
• Stronger protection against dismissal for refusing new terms (effective ban on fire-and-rehire)
• Expanded detriment protections for workers asserting statutory rights
• Extended tribunal time limits — moving from 3 months to 6 months for most claims

The hospitality-specific risk map

The claims most likely to hit hospitality operators over the next 24 months fall into five buckets: unlawful deduction from wages (usually tips, holiday pay or unpaid overtime), unfair dismissal (particularly around informal probation exits), discrimination (age, race, pregnancy and disability are the fastest-growing categories in hospitality), working time (rest breaks and holiday pay reference periods after Harpur Trust v Brazel), and the new zero-hour and guaranteed-hours provisions once they commence.

Tips and service charge deserve special attention. The Employment (Allocation of Tips) Act came into force in October 2024 and requires that all qualifying tips are paid to workers in full, allocated fairly and transparently, and covered by a written policy that workers can request in writing. Failure to comply is itself a tribunal cause of action, and early cases suggest that operators who have never formally documented their tronc arrangement are the most exposed.

What hospitality employers should do now

The venues that will come through this cleanly are the ones tightening their basics before the Bill commences, not after. None of this is new — it is the standard playbook — but the cost of skipping it just went up sharply.

Start with the hire. A written statement of terms on day one is a legal requirement and remains the single most useful document in a dispute. It should name the probation period, the notice arrangements in probation, the hours structure, the pay rate, the tronc arrangement, and the disciplinary and grievance procedures. If your current contract template is more than 18 months old, it needs a full re-issue.

Move on to probation. Every new hire should have a scheduled 4-week and 8-week probation review, in writing, with clear performance criteria and, where relevant, documented feedback. The single most common reason unfair dismissal claims succeed against hospitality operators is that a manager let a probationary hire drift for three months and then dismissed them in a WhatsApp message on a Sunday night.

Then look at the exit. Every dismissal — probation or otherwise — should go through a documented process with a meeting, notes, a decision letter, and a right of appeal. This is not bureaucracy for its own sake; it is the paper trail that makes a claim either winnable or unwinnable.

• Re-issue written statements of terms for all staff; audit for missing tronc and tips policy references
• Introduce structured 4-week and 8-week probation reviews with a paper trail
• Move all disciplinary and grievance notes into a single system, not managers' phones
• Document your tronc arrangement in writing and publish it to staff — Tips Act compliance is now a live risk
• Train GMs on the statutory dismissal process; the informal 'come in tomorrow, we're letting you go' era is over
• Audit rotas for zero-hour usage; anyone worked consistently for 12+ weeks is now a live guaranteed-hours case

How to think about it as a business risk

The most useful mental model is that the cost of a tribunal claim is now roughly the cost of the settlement plus £20,000 of management time, spread over 12–18 months. If you run a portfolio of 5 sites, one live claim per site per year is the base case, and that is before the Employment Rights Bill provisions commence.

The Bill's structural effect is to move the cost of casual employment practices from being an occasional shock to being a predictable annual expense. Operators who treat this as a compliance exercise will pay it every year. Operators who treat it as a reason to rebuild their people processes — hire, induct, review, exit — will pay it once, and then absorb the change as an operating discipline.