Proposed Law Commission Employment Tribunal Reforms

Proposed Law Commission Employment Tribunal Reforms

The Law Commission has published its report on Employment Law Hearing Structures.

The Commission was tasked with reviewing the Employment Tribunal system and in particular, the overlap of jurisdiction between it and the civil courts in some claims.

It will come as no surprise to practitioners that the Commission concluded that the employment tribunal system is not working as effectively or efficiently as it should be. It has therefore produced a report containing 23 recommendations, which it envisaged would enhance workers’ abilities to enforce their employment rights, and streamline the system to avoid having to issue proceedings in two different courts.

The Commission’s recommendations include:?

– Extending the time limit for bringing all types of employment tribunal claims from three to six months, including a recommendation that, where (as in unfair dismissal cases) it was “not reasonably practicable” to bring the claim in time, employment tribunals should have the discretion to extend time limits where they consider it “just and equitable” to do so (including in equal pay claims);

– Giving employment tribunals jurisdiction to determine breach of contract claims relating to workers other than employees (whilst retaining the exclusion for genuinely self-employed independent contractors),

– Giving employment tribunals jurisdiction to determine employees’ breach of contract claims whilst they remain employed (rather than having to bring such claims in the county court as is the case now);

– Increasing the £25,000 limit on contractual jurisdiction in employment tribunals to £100,000 (with the same limit applying to employers’ counterclaims);

– Giving the civil courts the power to transfer equal pay claims brought in that jurisdiction to an employment tribunal;

– Extending the jurisdiction of employment tribunals so that they can hear complaints by workers that they are working hours in excess of the maximum working time limits, and make declarations to that effect;

– The creation of a “fast track” enforcement system for enforcing judgements in the Tribunal system (to operate within the existing enforcement jurisdiction); and

– An “Employment and Equalities List” of High Court judges within sufficient expertise to hear employment and non-employment discrimination-related claims brought in that jurisdiction (for example, complaints about discrimination in the provision of goods and services).

These recommendations are not revolutionary – the Commission’s remit precluded it from considering any major restructure. However, in our view they are sensible and pragmatic proposals to make the best of the current structure. As such, we agree with the Commission that, if implemented, these proposals would enhance employees’ abilities to enforce their existing employment rights within that structure. If nothing else, the extension of time limits should result in significantly more claimants achieving justice than at present.

You can find the link to the official summary of the report here: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/04/6.6527_LC_ELHS-Summary-Report_FINAL_210420_WEB1.pdf and the recommendations are helpfully listed on page 22 onwards.

Donna Clancy

29 April 2020