The Law Commission has published its report into Employment Law Hearing Structures and made some significant and, in my view very sensible proposals.
The report runs to 212 pages so I’ll just highlight a few of the key points, which I think would be welcomed by employment law practitioners and tribunal users alike.
It is proposed that there should be a single time limit of six months applicable to all claims. The current time limit of three months has created frequent problems for tribunal users and these have often been compounded as a result of the requirement to use the ACAS Early Conciliation Procedure. Six months allows time for meaningful negotiations which avert the need for employment tribunal proceedings. However, it is not so long as to inflict on employers and extended period of uncertainty.
A single test for extending time: just and equitable
At the moment, the test for determining whether or not an unfair dismissal claim presented outside the three months’ time limit can proceed is to consider whether it was “not reasonably practicable” to lodge it within the stipulated period. In practice, this has been interpreted very narrowly and has produced what, in some cases, appear to be very harsh outcomes. For example, claims have been barred because employees wrongly thought that they could wait for the conclusion of early conciliation or because of problems with the post or other communication difficulties. However, other claims such as for discrimination are subject to a “just and equitable” test. Generally, this is a far less stringent test and can take into account all relevant factors to determine whether it is fair in the circumstances to allow a claim to proceed. Underpinning the process with a consideration of fairness is surely the correct approach. From an employer’s perspective, this is not a carte blanche because a claimant will still have to provide a satisfactory explanation for the delay. There is a similar recommendation in respect of equal pay claims. The existing strict approach has always seemed out of place in a no-fee jurisdiction which is intended to promote participation without legal representation.
Increase the contract jurisdiction from £25,000 to £100,000
This proposal seems well overdue. When maximum unfair dismissal compensation is nearly £90,000, it has been frustrating for people with breach of contract claims worth over £25,000 to have had to pursue them in the civil courts. This should also help people who have claims for both breach of contract and unfair dismissal.
Extend the contract jurisdiction – workers and claims during employment
Given recent extensions of the protection available to an increasing range of workers and not just employees it is obviously desirable that that tribunals should be empowered to deal with them. An interesting suggestion is that breach of contract claims could be extended to those arising in the course of employment and not just those connected with dismissal. This would be a significant extension.
Overall, these proposals seem very sensible and I for one hope that they are adopted as soon as possible.