The 31st May 2025 marks sixty years of Employment Tribunals (ETs) coming into being. Previously called Industrial Tribunals, they were originally intended to provide “an easily accessible, speedy, informal and inexpensive procedure” for resolving employment disputes.[1] Set up to be used by litigants in person – people representing themselves without a lawyer – the reality is that the procedural and legal process is very confusing and challenging to understand for an unrepresented litigant, which is discussed in Struck Out, a 2012 book on employment tribunals:
Now a cornerstone of the UK’s employment law system, they have changed beyond recognition over the last 60 years and the current systems are in need of an upgrade.
The Employment Tribunal is the final destination for whistleblowing cases – often a tortuous process that pits an individual whistleblower against the might of their employer’s legal team. Recent reports have shown that the UK employment tribunal backlog has hit record levels, with some warning the number is likely to rise further. Plus last year fees for Employment Tribunals were put back in the frame. So what does all this mean for whistleblowers?
Tribunal Backlog
According to recent analysis by the law firm Littler the backlog of open UK employment tribunal cases has risen by over a quarter (23 per cent) in just 12 months. The employment law firm looked at the latest HM Courts & Tribunals Service statistics and found the number of open cases reached 49,800 in December 2024, increasing from 39,000 the previous year. The analysis found there are currently approximately 450,000 people across single and multiple claims waiting for their cases to be resolved.
Under the government’s flagship worker rights’ legislation, currently going through parliament, employees will be entitled to “day one” protections against unfair dismissal and will have up to six months to bring a claim to an employment tribunal, an increase from the three months at present. This extension is certainly welcomed as will give more flexibility for would-be whistleblowers to make their claim. Missing from the extension of time limits is interim relief (IR) which is a reinstatement order that a whistleblower can request from the tribunal which means they either get their job back or, if this isn’t possible, they are paid their full wage for the length of the tribunal case. The problem exists that IR can only be applied for 7 days after the whistleblower has been dismissed, which is an incredible short period of time. We’d like to see this extended in line with general tribunal claims to 14 days.
The current long delays to Tribunals have significant implications for whistleblowers who are left in limbo while waiting for their case to be heard. While going to the Tribunal is often the result when the internal processes haven’t gone well, the drawn-out process is hugely stressful for claimants and the judge doesn’t have the remit to investigate the problems the whistleblower raised (often to the frustration of whistleblowers who are looking for “their day in court” to right the wrongs they had witnessed).
Slim chance of success
It’s well reported that only 3% of whistleblowing claims are “successful at hearing” but this doesn’t really tell the whole story. Analysis has shown that a third of all cases are settled through ACAS and a high percentage of claims settled through some means (including claims being withdrawn because of settlement with the employer). The 3% figure suggests this is all whistleblowing cases, but in reality the majority never get to the Tribunal as they are either settled or dropped along the way. But for anyone going through the Tribunal process seeking justice at this level is an incredibly stressful and intimidating experience. Whistleblowers who settle their case may feel they cannot continue to raise the public interest concern at the heart of the case (e.g. the fraud, sexual harrassment etc.) due to confidentiality or non-disclosure agreements within the settlement agreement. The law states that any clause in a contract is void if it aims to prevent an individual from raising their whistleblowing concerns (this can include disclosures to a regulator, MP or the press). Yet awareness of this is very low, YouGov and our own research has found less than half (48%) of adults were aware of a law that protects whistleblowers. We would like to see every settlement include text that specifies the right to make public interest disclosure. Plus, independent legal advice- paid by the employer- to outline the limits of their confidentiality agreement and their ability to blow the whistle in the future.
Free or Fees – the impact on access to justice:
Tribunal fees were abolished in 2017 scrapping the £390 to £1,600 charge to lodge a claim. In January 2024 the Sunak Conservative government launched a consultation on bringing the fees back with a £55 issue fee that would be payable by the claimant on bringing a claim to the ET. The Law Society president Nick Emmerson said it could price out access for justice for those who need it most but with the change in government it seems that the proposals have been shelved for now.
The future of Employment Tribunals and whistleblowing claims
As Employment Tribunals mark this important milestone, it is crucial to modernize the system – making it more efficient, transparent, and user-friendly. For whistleblowing cases – the Tribunal is an indication of when things have gone wrong and the relations between employer and employee have irrevocably broken down. Effort and focus are best spent improving the law to provide real support and strong protections for those who speak up, before, during, and after they blow the whistle.
https://protect-advice.org.uk/legal-reform-campaign/
[1] Royal commission on Trade Unions and Employers’ Associations 1965-1968: Report, Cmnd 3623; (1968), para 578