The Law Commission Recommends Wide Ranging Changes to Employment Tribunals Powers.
On 29 April 2020 the Law Commission published its recommendations for changes to the jurisdiction and powers of employment tribunals. It would be fair to say that the statutory nature of the tribunal’s powers has given rise to anomalies: jurisdiction is constrained in certain contexts, and there are a number of discrepancies between the extent of the jurisdiction of civil courts on the one hand and employment tribunals on the other.
The 200 page report makes 23 recommendations, proposing wide-ranging expansions to the jurisdiction of employment tribunals, a number of which are set out below.
The Extension of Time Limits
The report notes that the three-month limit dates back to the original conception of tribunals as a speedy and informal forum for resolving employment disputes, however today claims take longer to be resolved and are often more complex and may involve large sums. The Commission concludes that an extension of the time limit for bringing a claim to six months for all employment tribunal claims would strike an appropriate balance between facilitating access to justice for employees and providing certainty for both parties.
The Test for Extending Time Limits
On the basis that the sharp edges of the “not reasonably practicable” test risk producing arbitrary and unjust outcomes by preventing some deserving cases from proceeding, the Commission recommends that in claims where the time limit for bringing the claim can, at present, be extended where it was “not reasonably practicable” to bring the complaint in time, employment tribunals should have discretion to extend the time limit where it is considered just and equitable to do so.
Employment Judges Sitting Outside Tribunal
The Commission was persuaded that employment judges with experience of hearing discrimination claims should be deployed to sit in the county court to hear discrimination cases, and that it would be desirable for them to sit with one or more assessors where appropriate.
Breach of Employment Contract Claims
A number of changes are recommended to the present restrictions on tribunals’ jurisdiction to hear contractual disputes:
- the time limit for claims for breach of contract brought in an employment tribunal during the subsistence of an employee’s employment should be six months from the date of the alleged breach of contract;
- the time limit for claims for breach of contract brought in an employment tribunal after the termination of an employee’s employment should be six months from the termination, but
- where the alleged liability arose after the termination of the employment, the time limit should be six months from the date upon which the alleged liability arose.
The current £25,000 limit on tribunals’ contractual jurisdiction in respect of claims by employees should be increased to £100,000 and thereafter maintained at parity with the financial limit upon bringing contractual claims in the county court. The same financial limit should apply equally to claims by employees and counterclaims by employers.
The jurisdiction should be extended to include claims and counterclaims for damages or sums due in respect of living accommodation.
It should be made clear that employment tribunals have the same jurisdiction to determine breach of contract claims in relation to workers as they have in relation to employees. Further, should any of the above recommendations be enacted, the same should expressly include workers.
Further recommendations include proposals to grant tribunals the power to interpret or construe terms in contracts of employment, hear claims of unlawful deductions from wages that relate to unquantified sums, and apply set-off principles in unauthorised deduction from wages claims.
Additional proposals are made as to equal pay claims, including a discretionary power to extend the limitation period for equal pay claims where it is just and equitable to do so.
Finally, the Commission invites the Government to consider changes to the enforcement process, including:
- creating a fast track for enforcement which allows the claimant to remain within the employment tribunal structure when seeking enforcement;
- extending the BEIS employment tribunal penalty scheme so that it is triggered automatically by the issuing of a tribunal award;
- sending a notice with the judgment to inform an employer that if it does not pay the award by a set date, it will be subject to a financial penalty;
- sending a copy of the judgment to the BEIS enforcement team; and
- improving the information sent to successful claimants on how to enforce awards.
Plainly at present the Government is somewhat preoccupied, however the inevitable delays in claimant’s bringing employment claims, and the potential for an increase in new claims following from the economic disruption caused by Covid-19, may serve as an impetus to act on at least some of the Commission’s recommendations.
The full report, and a summary of its key recommendations can be found on the Law Commission’s website at https://www.lawcom.gov.uk/project/employment-law-hearing-structures/.