Employment Tribunal Reform Consultation

25th October 2018 Employment

As part of its ongoing review of Employment Law Hearing Structures, the Law Commission has recently published a wide-ranging consultation paper inviting the public to comment on proposed changes to the way Employment law matters are handled. The consultation paper poses 54 questions about the future of the Tribunal systems and what changes should be made in order for it to run more effectively.

The overriding theme of the consultation appears to be allowing Employment Tribunals to take on more claims from the civil court system. The Law Commission suggests that the ET’s jurisdiction is widened to include non-employment discrimination claims, as well as employee breach of contract claims. By doing so, many of these claims will inevitably move from the civil courts, where they are currently heard, to the Employment Tribunals, because of the more favourable costs environment and the fact that claimants no longer have to pay to lodge an ET claim. This, coupled with the proposed increase of the current £25,000 limit for breach of contract claims in the ET, would see a great deal of lower value claims being brought to a Tribunal rather than a court.

The consultation also seeks to extend the limitation period for bringing a claim in the Employment Tribunal. Currently, most claims must be brought within three months, with a select few claims allowed six months. The Law Commission suggests extending this to six months for all claims, which would be very good news for claimants. They also suggest widening the Tribunals discretion on whether to extend time limits from the current test (a claimant can currently only extend time where it as “not reasonably practicable„ for the claimant to issue in time) to allowing the Tribunal to extend where it is “just and equitable„ to do so. While this may not seem much of a difference to a layperson, it represents a substantial lowering of the bar for extension of time and would certainly see more claims allowed to proceed, even if brought out of time.

It should also be noted that regarding equal pay claims, the consultation suggests increasing the Employment Tribunal limitation to match that of the civil courts which is six years from the end of employment. For those employers already facing a tidal wave of historic equal pay claims (and those that expect to face them in the near future), this will be a huge cause for concern, as it would undoubtedly increase their potential liabilities exponentially.

Finally, the consultation suggests allowing Tribunals to make orders for contributions against Respondents who are found jointly liable. While this again may not seem a significant change, it would change the course of claims where multiple Respondents are named instead of only one being at risk of liability, with the proposed changes all named Respondents could have to foot a portion of the bill if found to be jointly liable.

In summary, this consultation appears to be decidedly Claimant-friendly, with its suggestions, if implemented, sure to benefit Claimants cases much more than Respondents. Employers however will be sweating over the loosening of time limitations and the jurisdictional changes, which would surely create an increase in claims being brought against them.

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Paul Chamberlain is a Partner and Head of Department located in Manchesterin our Employment department

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