Law Commission publishes proposals for employment tribunal reform

On 29 April 2020, following a consultation process, the Law Commission published its 212 page report on employment law hearing structures (together with a summary document).  The objectives of the review were to remove unnecessary anomalies relating to the jurisdictions of discrimination and employment law, increase efficiency by ensuring that employment and discrimination cases are determined by the judges best equipped to hear them, and to consider whether the restrictions on jurisdiction are fit-for purposes and in the interests of access to  justice.

The report is wide-ranging in its recommendations and sets out proposals for changes to the powers and jurisdiction of the employment tribunals.

Some of the key recommendations include:

  • The time limit for bringing all employment claims should be extended to 6 months and the test for extending time limits should be the “just and equitable test” in all cases.
  • Employment judges with experience of hearing discrimination claims should be deployed to sit in the County Court to hear discrimination claims.
  • Employment tribunals should have jurisdiction to hear breach of contract claims, and related counterclaims, brought during employment and resulting from alleged liability arising after employment has ended.
  • The limit on employment tribunals’ contractual jurisdiction should be increased from £25,000 to £100,000.
  • Employment tribunals should be given the power to interpret or construe terms in employment contracts in order to exercise their jurisdiction under Part 1 of the Employment Rights Act 1996 (ERA).
  • Employment tribunals should have the power to hear unlawful deductions from wages claims relating to unquantified sums and the jurisdiction to apply set-off principles to established claims against an employee for a quantified sum.
  • Equal pay claims should be able to be transferred from the civil courts to the employment tribunals (with a presumption in favour of a transfer) and judges given the discretionary power to extend the limitation period for equal pay claims where it is “just and equitable” to do so.
  • Employment tribunals should have jurisdiction to hear complaints by workers that they are working in excess of their maximum working time limits under the Working Time Regulations 1998.
  • In employment-related discrimination claims, respondents should be able to claim contribution from others who are jointly and severally liable with them for discrimination.
  • The Government should investigate the possibility of a fast-track enforcement system and extending the BEIS employment tribunal penalty scheme, so that it is triggered automatically by the issuing of a tribunal award.
  • A special list of employment-related claims should be established to deal with employment and discrimination-related claims and appeals within the Queen’s Bench Division of the High Court and named the “employment and equalities list”.

The report has no power to change the law; only Parliament is able to implement reforms.  However, under a protocol agreed between the Government and the Law Commission, the relevant Minister will consider the proposals and provide an interim response within 6 months and a full response within 12 months, which will set out which recommendations are accepted, rejected or modified.