Employment Tribunals - 2019 and beyond!
The Law Commission issued a consultation paper as part of their review of employment law hearing structures earlier in 2018. The consultation considered how the Employment Tribunal and County Court operated and whether changes should be made.
The Commission considered the following issues:
A. The shared jurisdiction between civil courts and tribunals in relation to certain employment and discrimination matters, including equal pay;
B. The restrictions on the Employment Tribunal’s existing jurisdiction;
C. The exclusive jurisdiction of the county court in certain types of discrimination claim; and
D. The handling of employment disputes in the civil courts.
They looked in particular at:
- a.Whether the limitation period for presenting a claim should be extended to 6 months (from 3 months);
- b.Whether the test for extending time where claims are presented late should be amended to give Tribunals greater discretion to extend time in all cases;
- c.Whether Employment Tribunals should have jurisdiction to hear a claim by an employee for damages for breach of contract where the claim arises during the employee’s employment. At present such claims can only be brought on termination of employment;
- d.Whether the current £25,000 limit on the level of damages that can be awarded by Employment Tribunals’ in a breach of contract claim should be increased. At present claims in excess of £25,000 have to be brought in the County Court;
- e.Whether Employment Tribunals’ exclusive jurisdiction over certain types of statutory employment claims should remain;
- f.Whether the County Court should retain jurisdiction to hear non-employment discrimination claims;
- g.Whether Employment Tribunals should be given concurrent jurisdiction, alongside the County Courts, to hear non-employment discrimination claims and if so, whether there should be power for judges to transfer claims from one jurisdiction to the other;
- h.Whether employment judges should be deployed to sit in the county court to hear non-employment discrimination claims.
Although the recommendations of the Law Commission will not necessarily be implemented (it is an advisory body only), it will be interesting to review the response to the consultation. In particular, in relation to the possible extension of the time limit.
The existing three month time limit for employees to bring a claim in the Tribunal provides, in most cases, a point at which employers know, usually after the end of an employee’s employment, whether or not a claim is being pursued. It provides a degree of certainty to employers and enables businesses to move forward.
This time period has already been effectively extended by the introduction of the ACAS pre-claim conciliation process which ‘stops the clock’ whilst the parties conciliate. This means the time to issue proceedings is effectively extended by a further month or more. Doubling the time limit (which is currently proposed) not only leads to a longer period of uncertainty for employers with the potential to stifle business opportunities and growth but it could lead to an increase in Tribunal claims. Claimants who may not have felt able to obtain advice and present their claim within three months, may feel that 6 months is a more achievable time limit. Any increase in the number of claims going through the Tribunal service is however, something which an already stretched Tribunal service may struggle to cope with.
The latest statistics from the Ministry of Justice (September 2018) reports a 165% increase in the number of single claims presented compared to the previous year. Multiple claims have increased by 344%. Tribunals have been struggling to keep pace with the amount of claims submitted and are in the process of recruiting an additional 54 Full Time Equivalent judges who are due to be appointed in 2019 to meet the increased demand. Manchester and Croydon Tribunals have reportedly been listing longer hearings for 2021, due to the backlog they currently face.What is clear is that Tribunal claims are on the rise again. No fee is currently payable to issue a claim. Employers’ need to ensure that they follow appropriate procedures to reduce their exposure to claims particularly if the Government take up the option of extending time limits. They also need to ensure that appropriate notes are taken of the action taken, and reasoning why, as by the time the case gets to a hearing, the managers that dealt with the issue may well have left!
For further help or advice or to discuss the issues raised in this article, please contact Hannah Boynes.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.