Employment Tribunal fees. Simple, right? Everyone knows that employees ‘have three months to claim’ and that’s that? Not really. What about the fact that Equal Pay claims (and certain other types of claim) have a six-month time limit? That doesn’t tie into the presumption of simplicity. What about an employee who is dismissed on 2nd January and serves a 3 month notice period, so their last day is 1st April – do you count the three months from notification of dismissal or from their final day at work? How much does a period of Acas Early Conciliation extend any given time limit by? I could go on and on…
Overall, what is surely uncontroversial for both employees and employers alike is that simplicity is key. If everyone understands how long an employee has to bring a claim, everyone has the certainty of knowing the period within which to consider conciliation, negotiation and/or the obtaining advice regarding a prospective claim.
It is with this in mind that the Law Commission have recently issued a Consultation Paper considering, amongst many other things, what would be an effective time limit for employees to bring Employment Tribunal claims. Just as a bit of background, the Law Commission exists as a body committed to promoting reasonable reform of existing law and practice. In this case, the Consultation Paper concerned largely focuses on ways to improve the current Tribunal system and the sometimes thorny issue of time limits is, naturally, a big part of that.
On the whole, there are three main questions at play here:
(1) Would it be easier for all time limits to be six months in the Employment Tribunal for the purpose of certainty?
(2) Would it be fairer to employees to have six months to consider an Employment Tribunal claim rather than three months?
(3) Would it affect business certainty to a disproportionate degree if employers didn’t know whether an employee would be taking legal action for six months rather than three months?
Let’s have a quick look at each question.
Yes, it would be more certain if all time limits for Employment Tribunal claims were the same amount of time. However, you could argue that it would be easier to reduce the six-month time limits of the handful of applicable claims to three months than increase the sizable number of three-month time limit claims to six months. In this way, the second and third questions (considering fairness to employees and employers) are more relevant here.
This is where we hit the contentious bit. Employers are going to reasonably argue that the current three month time limit is long enough and that doubling that period would affect business certainty (i.e. force employers to hold funds to one side for potential legal fees for double the usual period). Some may say ‘oh, but if you carry out fair employment practice, you won’t face any Employment Tribunal claims’ but, sadly, that is not true. I regularly have sight of legally sound processes which, nonetheless, have resulted in legal challenge against the employer. Naturally, this is the prerogative of any employee; if they wish to bring a claim, they should be able to do so.
However, from an employer’s point of view, facing the start of a claim six months down the line (rather than three months) will result in difficulties investigating any allegations due to staff departures and/or less accurate recollections from staff due to time. I would largely imagine that the standard view of employers would be that an employee should reasonably be in a position to decide whether to launch an Employment Tribunal claim (particularly now there are no expensive Tribunal Fees to pay upon lodging a claim) within three months.
But what about the other side of things? For employees, the issue may be financial in nature. Yes, there are now no Tribunal Fees payable upfront when lodging a claim, however, in the case of claims relating to a departure from work, are employees likely to wish to spend money on legal advice when they aren’t within employment? Would they be more likely to do so after obtaining alternative employment and being in a more financially sound position (within 3-6 months of leaving their former employer)? Most likely. In situations concerning discrimination, it is highly possible that some employees are unaware of the complex discrimination laws and may only realise several months down the line that their employer’s (or former employer’s) actions were unlawful. Should they be limited by an arbitrary short time limit?
Whilst it is true that employees can apply for extension of time limits in exceptional circumstances (there are two separate tests which I won’t bore you with here), ignorance of the law doesn’t tend to be a successful justification. In saying that, employers have historically been frustrated by the amount of claims that are technically brought out of time but are ‘saved’ by lenient Tribunals (usually in circumstances where a civil court would dismiss the claim).
Maybe there is a compromise available here. What about a system in which all time limits are six months but, if you miss it, you cannot successfully ask a Tribunal to extend time and ‘save’ any out-of-time claims except in ‘truly exceptional circumstances’ (i.e. hospitalisation, mental health sectioning or any other reasons to that degree)? That method would potentially provide fitting certainty for both time limits and time limit extension applications.
Who knows what the future holds going forward but, overall, on the issue of time limits and time limit extension applications, the following principle seems fitting: if in doubt, simplify.