03.06.2025

When the Government published its impact assessment of the Employment Rights Bill (the Bill) in October 2024, it indicated that employment tribunal claims could increase by roughly 15% as a direct consequence of legislative changes. Most of this was accounted for by the proposals to make protection from unfair dismissal a “day one right”, the right to reasonable notice of shifts and the right to guaranteed hours.

However, since then a significant number of amendments have been made to the Bill, which were not factored into the Government’s impact assessment (as noted in Q1 of our March HR and Employment Law FAQS). The amendments included an extension to the time limit on tribunal claims from three months to six months, new powers for the Fair Work Agency (FWA) to bring a tribunal claim on behalf of a worker, and the inclusion of agency workers in the new right to be offered guaranteed hours and the right to reasonable notice of shifts.

Essentially this means that the only published assessment of the Bill’s impact is likely to significantly underestimate its effects on the tribunal system and wider enforcement landscape. We look at this issue further below.

A system already under strain

The employment tribunal service has faced considerable pressures for some time, with some Employment Tribunal Centres now listing long cases into 2028. Whilst there are regional variations on the speed at which tribunal hearings are allocated, tribunal administration at a national level tends to be slow, with frequent bottlenecks. Resourcing issues have long been a concern, and the reported cuts which the Government has indicated it will need to make moving forwards could exacerbate this.

Potential impact of the Bill

Various measures in the Bill could place further strain on the tribunal system. (As a reminder, we explored the contents of the original draft Bill in our earlier e-alert here.) In particular, employers should note the following:

  • Day one right to protection from unfair dismissal: Extension of protection from unfair dismissal is a key legislative change and this is expected to have the largest impact on the number of claims reaching tribunal. The Government’s impact assessment estimated an additional 3,350 ET1 cases of which 620 would require judicial time. Make UK’s Policy Team has encouraged the Government to focus on ensuring that the dismissal process during a new statutory probation period is as ‘light touch’ as possible, so that employers can dismiss during the statutory probation period (e.g. nine months) without the risk of incurring an unfair dismissal claim.
  • New right to reasonable notice of shifts: The impact assessment estimated an additional 850 ET1 cases of which 150 would require judicial time, and the recent inclusion of agency workers in the right to reasonable notice of shifts is an unwelcome addition for employers. In our view, clear guidance for employers on communication and how ‘reasonableness’ of notice provided would be assessed will be critical to ensuring compliance and reducing the risk of higher volumes of tribunal claims.
  • New right to guaranteed hours: The impact assessment estimated an additional 300 ET1 cases of which 55 would require judicial time. The recent amendments to the Bill extending the right to guaranteed hours to agency workers mean these figures are likely to be higher than originally estimated.
  • Additional powers for the FWA to bring tribunal claims on behalf of workers: It seems inevitable that this will lead to further pressure on the tribunal system. Part of the rationale of introducing the FWA was to reduce pressure on the tribunal system by, for example, taking over enforcement of holiday pay. However, the extension of the FWA’s proposed powers to bring claims on a worker’s behalf when the worker has declined to do so risks undermining this goal.  

What next?

There is no doubt that various proposals set out in the Bill risk placing even more pressure on an already struggling employment tribunal system. On the one hand, it is encouraging that the Government has shown willingness to consider some of employers’ concerns linked to tribunal capacity (shown by the Government’s decision, rightly, not to introduce interim relief in fire and rehire/collective redundancy cases). However, it is important that employers’ concerns are taken into account as other details about various measures in the Bill evolve over the coming months.

Make UK has urged the Government to explain how it expects the recent amendments to the Bill to impact tribunal capacity, including updating its impact assessment. It will be useful to see whether the Government outlines as part of its forthcoming Spending Review how it will allocate resources to the tribunal system via HMCTS over the review period. It will also be important to ensure that Acas has sufficient resources to improve and expand early conciliation, to prevent a higher number of tribunal claims arising as a result of measures in the Bill.

How we can help

Make UK's Policy Team will continue to represent the views of Make UK members to Government, sharing member insights, suggestions, and concerns via meetings, roundtables, and during the upcoming consultations. We are keen to hear your thoughts about the Government’s proposals in the Bill - please email our Policy Team with any comments.

Make UK subscribers can also access guidance on a wide range of employment law topics, including template policies and drafting guidance, in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, email [email protected] for further information.