Thu 07 May 2020

What is the future for Employment Tribunal hearings?

The Law Commission for England and Wales has published recommendations on how employment law hearings could be managed in the future.

Currently there are a number of discrepancies between the extent of the jurisdiction of the civil courts on the one hand and the employment tribunals on the other in relation to the same or similar types of claim.  In some cases the demarcation of the jurisdictions over employment disputes means that claimants cannot resolve their whole dispute in one forum and their claims are not necessarily heard by a judge with relevant expertise.  In 2018, the Law Commission published a consultation paper regarding employment law hearing structures.  The consultation closed in January 2019 and in April 2020 the Law Commission's report was published. 

The report makes 23 recommendations for changing the law in England and Wales, but they do not extend to Scotland or Northern Ireland.  The functions of employment tribunals and the EAT in Scottish cases are due to be devolved to the Scottish Parliament.  However, there is an expectation that substantive employment rights and duties will be reserved to Westminster.  While some of the issues considered in the consultation are plainly only directly relevant to England and Wales, responses were received from interested parties in Scotland.  In some areas, if changes are made in England and Wales this would have significant implications - such as "forum shopping" - if they were not also introduced in Scotland.  If any recommendations are accepted by the UK Government it will be necessary for the UK Government to consider also the extent to which the same or similar measures should be taken in Scotland, or for the Scottish Government to do so if those matters have by that time been devolved.

The "headline recommendations" are as follows:-

  • Extending the time limit for making all employment tribunal claims to six months (this compares to 3 months for most claims at present);
  • Increasing the cap on compensation for breach of contract claims from the current £25K to £100K, and for this to apply to both employees' claims and employers' counter claims (the £25K limit has been in place for many years and has been criticised for being too low);
  • A single test for extending the time limit for lodging claims with the "reasonable practicability test" being dispensed with in favour of the "just and equitable test" (this would make it easier to argue that claims should be allowed in late);
  • Extending employment tribunal jurisdiction to hear contractual claims brought by workers as well as employees, to include breach of contract cases brought during and not (as is currently the case) only after employment ends, and to hear cases about post termination breaches;
  • Allowing Employment Tribunals to hear claims from workers that they are working in excess of the maximum working time limits;
  • Allowing respondents in discrimination claims to claim contributions from others who share joint and several liability with them;
  • Allowing equal pay cases to be transferred from civil courts to employment tribunals; and
  • Establishing a specialist list of judges to deal with employment and discrimination claims in the High Court.

In theory, an interim response should be provided by the UK Government within 6 months and a full response within a year of this report being published, setting out which recommendations will be implemented.  Whether the current coronavirus outbreak will delay that or not remains to be seen.  However, many of these recommendations are widely supported and in the past something in the region of 70% of the Law Commission's recommendations have been implemented - so it is likely we will see some changes in due course.

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