In December 2017, the Law Commission (“the Commission”) turned their attention to our Employment Law system following the notable comment of Lord Justice Briggs.

The Commission stated that the jurisdiction governing discrimination and Employment Law was an “awkward area” which lead to anomalies and restrictive boundaries within the Tribunal and Court justice system.

The Commission has since undertaken a thorough investigation and found that because of a lack of authority within the Tribunal, cases experienced delays and unnecessary complexities.

What is the Law Commission?

The Law Commission are a statutory independent body who conduct research and consultations with the view to make legal recommendations for Parliament to consider.

Their recommendations aim to ensure that the law is fair, modern, simple and accessible as well as striving to eliminate anomalies, revoke obsolete enactments and unify segregated legislation into a single statute.

On 29th April 2020, the Commission published the findings of their investigation.

It released their recommendations to seek to improve how employment law disputes are decided.

They propose the following;

  • Increasing the powers of the Employment Tribunals to enable them to rule on claims for breach of contract in the situation where an employee or worker continue to be employed under that contract.
    • Currently, an individual must have left the employer prior to bringing a claim.
  • Increase the time limit to bring any Employment Tribunal claim to six months and additionally giving tribunals the discretion to further extend time limits where they deem it to be “just and equitable”.
    • Currently, an individual has a three-month time limit to lodge a claim regarding employment law matters. There are some exceptions, although ordinarily a claim exceeding three months is assumed to be “out of time”.
  • Grant the Employment Tribunal the right to rule on breach of contract claims and grant damages of up to £100,000.00.
    • Currently, the Employment Tribunal is only able to award damages of up to £25,000.00 meaning that if a claim sought to recover damages exceeding this amount, but was still within the employment sector, they would have to pursue the claims both within the Employment Tribunal and County Court simultaneously.
  • Allow the Employment Tribunal to hear and handle Working Time Regulation breaches lodged by employees.
    • Currently, they hear some WTR claims although seemingly this is to increase their coverage and control on the matter.
  • Increase the Tribunals’ abilities to enforce the payment of damages/awards to ensure that post-judgment compensation is paid in a timely fashion.
    • Currently, the court is restricted with enforcing payment often meaning that the employee has a ruling in their favour but does not receive their compensation for some time. It has been acknowledged that the likelihood of delayed compensation is potentially a deterrent for claims to be lodged. 
  • Deploying employment Judges who have undertaken experience in rulings on discrimination claims, to sit in County Court to hear wider discrimination claims outside of the Employment Law sector.

The release of these recommendations coincides with the collective call of more than 20 of the UK’s Justice Bodies urging the Lord Chancellor to double and relax the time limitation for lodging a claim in the Employment Tribunal temporarily due to expected delays as an effect of the COVID 19 pandemic.

The Effects

At the time of this article, employees have three months to raise a claim and begin Employment Tribunal matters to contest the actions or decisions of their employer.

The employee ordinarily does not have the right to begin proceedings on a claim after the three months limit has surpassed, although there are exceptions.

For example, if there is the risk that the decision to dismiss an employee may raise concerns of potential unfair dismissal, if this has been left for three months, or more, the ability for the employee to bring a claim is deemed out of time (subject to ACAS conciliation, exceptions and extensions).

The other accumulative recommendations to increase the powers of the Tribunal will work on creating a quicker and more efficient claim handling system.

If the Tribunals can hear and settle a wider breadth of the cases independently, cases will avoid unnecessary added complexity of involving an additional justice body, the added costs of the additional resources and the expected delays incurred due to sections of the same claim running concurrently in differing courts.

The Commission’s recommendations have been made to further the protection available to the claimant (employees or workers).

This likely means that, if made, we may see an increase in claims lodged against employers, especially those ordinarily “out of time”, although the claims themselves should, in theory, run more efficiently without unnecessary complexities.

We expect to hear whether Parliament will implement any or all of the Commission’s recommendation soon.

We expect to hear in particular comments concerning the time limit extension, given the collective call made to the Lord Chancellor.

However, we are yet to discover whether this will be a temporary measure as the UK recovers from the COVID 19 pandemic, or whether this will be a permanent adjustment to the Employment Law system.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.