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30 April 2020

Law Commission recommends changes to Employment Tribunals

3 mins

The Law Commission’s report titled ‘Employment Law Hearing Structures’ is the result of years of consultation and policy development on the jurisdictional boundary between the Employment Tribunals and the civil courts. The report sets out 23 recommendations for reform.  The full text of the report can be found here.

Some of the key recommendations include:

  • An extension of the time limit for bringing a claim should be six months for all employment tribunal claims;
  • The ‘not reasonably practicable’ exception to time limits for claims that use it be changed to a ‘just and equitable’ test;
  • The current £25,000 limit on employment tribunals’ contractual jurisdiction be increased to £100,000 and thereafter maintained at parity with the financial limit in the county court;
  • County Courts to benefit from the expertise of Employment Judges in dealing with discrimination cases;
  • Establishing a separate, informal list in Queen’s Bench Division of the High Court for all employment & discrimination cases. 

It will take time to digest the full report, but many of these recommendations are sensible, and reflect proposals commonly suggested by practitioners. A more detailed consideration of the proposals has been prepared by barrister Eleena Misra for the Bar Council .  Employers may react with nervousness at the extension of limitation periods, but in more complex matters, it is usually to the parties’ benefit if the claimant is not time pressured into bringing a premature, poorly particularised claim. 

Likewise, changing the limitation exception in unfair dismissal cases looks employee-focused, but in practice, it is unlikely to see a significant increase in cases.  The underlying claim would still be prima facie out of time.  Fewer cases are likely to be struck out on limitation grounds, but again that change may not be particularly high.  The claimant would still be required to show that it was ‘just and equitable’ to extend time, which will require them to demonstrate that they acted reasonably in the circumstances.  An extension of the time limit to six months is likely to be relevant to this issue, not least because it will be harder to show that delay beyond six months was reasonable.  Additionally, if it is just and equitable for their case to proceed at that time, it is difficult to argue that change to the test is unduly unfair on Respondents, given the ET will have performed a balance of prejudice assessment.   

The proposals relating Employment Judges hearing discrimination cases in the civil courts fall short of requests to bring these discrimination cases into the jurisdiction of the Employment Tribunal, but should still be welcomed.  It does not address the problems faced by people with an unclear employment status (for example) who are required to protectively lodge in both forums, but it does offer more assurance that the civil courts will be better equipped to deal with the technical nature of these claims.

This article was written by Robert Maddox, please do get in touch if you have any questions. 

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