Employment law change is rarely subtle. HR leaders are used to keeping tabs on new rights, updated guidance and shifting compliance obligations. But one of the most significant risks now emerging for employers is far less visible and far easier to underestimate.
With ACAS’ early conciliation window now 12 weeks instead of six, and employment tribunal timelines set to double from three to six months in October 2026 under the Employment Rights Act, organisations are entering an era of what I describe as ‘litigation lag’.
This is the growing gap between an employee leaving and an employer discovering that legal action may be on the way. In some cases, that gap could soon stretch to nine or even 12 months. For HR teams, this changes the risk landscape entirely.
A longer wait before claims surface
In practical terms, the increase to both early conciliation and tribunal claim windows means that an employee could leave an organisation, wait several months before starting early conciliation, spend up to three months in that process, and only then submit a claim. Depending on the specific circumstances, that could mean almost a year before an organisation sees a claim appear.
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This is a significant change. Some employers took comfort, or a calculated risk, from the relatively short window individuals had to issue claims. As of October, that risk calculation needs to be revisited.
Extended timelines are likely to increase claims
Longer deadlines do more than delay litigation, they change behaviour.
Time creates distance, and distance can alter decision-making. Employees who may initially have been uncertain about bringing a claim often become more determined where they’ve struggled to secure a new role or had the opportunity to reflect on their departure. Longer timelines also allow more scope for research, seeking advice and external influence.
We are also seeing grievances and pre-claim correspondence becoming more detailed and sophisticated due to the input of AI tools helping individuals frame allegations in legal language. When combined with extended deadlines, this raises the likelihood that issues which might have once faded away, can appear dormant, only to appear much further down the line.
At the same time, employment tribunals remain under considerable pressure. If these changes increase claim volumes as expected, delays are only likely to increase further, extending uncertainty for employers even after claims are issued.
Mitigating the impact of litigation lag
In this new litigation environment, relying on memories and a loose paper trail is no longer a suitable risk management strategy.
By the time a claim surfaces, decision-makers may have moved on, teams may have restructured, and knowledge may have dispersed. HR teams will be relying heavily on what was recorded at the time, and often more importantly, what was not.
This places greater emphasis on the quality of employee relations (ER), process documentation and early-stage decision-making, because it may all form part of the evidential trail. Investigation notes, reasons for decisions, records of performance conversations and the tone of written communications all take on greater significance when they may be scrutinised many months later, especially when the context of the situation has been diluted by the passage of time.
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Early conversations also matter more than ever. How concerns are acknowledged, how exits are handled, and how grievances are concluded will often shape what happens long after the employment relationship has ended. A process that feels rushed or loosely documented at the time could be almost impossible to defend when a claim lands in a year’s time (let alone if you then have to wait another 18-24 months for it to be heard!)
Protecting your organisation
The answer is not to become overly cautious or defensive, but to be intentional and consistent.
HR leaders and decision-makers should now be thinking about exits as the beginning of a potential risk window, not the end of a process. That means reviewing ER practices with extended timelines in mind and ensuring that managers understand that informal discussions may need to be resurfaced much later.
Practical steps include:
- Treating contentious exits as live risk until limitation periods have genuinely expired,
- Ensuring that ER records are clear, balanced and comprehensive to protect your future position,
- Supporting managers to handle difficult conversations thoughtfully, not reactively,
- Maintaining internal visibility of unresolved issues even after employees leave.
Above all, HR teams may need to rethink what ‘closure’ really means. In this new litigation context, it’s not when someone walks out of the door, it’s when the legal risk has safely passed.
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Litigation lag may not grab headlines in the way new legal rights do, but it has the potential to reshape how organisations experience employment disputes. The employers who recognise and adapt to this shift early will be far better placed to manage what comes next.
By Rena Christou, group CEO at Empowering People Group
