While COVID-19 is naturally dominating the news, there has been an interesting report released by the Law Commission on the future of employment tribunal hearings. This follows a consultation which ran between September 2018 and January 2019.
The consultation asked a number of questions and sought opinions relating to the operating practices and jurisdiction of employment tribunals, and in particular in areas where there is an overlap of jurisdiction with the civil courts to hear employment and discrimination claims. The Report makes a total of 23 recommendations taking into account the consultation responses and other research measures.
The Law Commission may only make recommendations for changing the law in England and Wales, and as such, the recommendations do not extend to Scotland or Northern Ireland, both the President of the Industrial and Fair Employment Tribunal (Northern Ireland) and the President of the Employment Tribunals (Scotland) have agreed with the responses of English and Welsh Tribunals, ensuring there has been input from across the UK.
Key recommendations for Employment Tribunals
The key recommendations are:
- Providing Employment Tribunals with the power to hear claims of breach of contract brought by employees and workers who remain employed. At present, in order to bring such a claim, the employee must have left their employer;
- Increasing the time limit for bringing all types of employment tribunal claims to six months (currently it is three months for most types of claim). Tribunals would also have the discretion to extend time limits in all claims where they consider it "just and equitable" to do so, at present, there are different tests based on the type of claim raised;
- Increasing the limit on bringing employment-related contract claims in tribunals from £25,000 to £100,000, in a bid to reduce the need for Claimants to pursue different aspects of the same claim in the Tribunals and Civil Courts;
- Flexible deployment of judges, to allow employment judges to hear discrimination claims in the civil courts, and the creation of a specialist list in the High Court to deal with employment and discrimination claims;
- Improvements to the procedures for enforcing employment tribunals' awards to ensure employees receive the compensation in a timely fashion; and
- Tribunals not to have the power to grant injunctions (as is presently the case).
Increasing protections for employees
The Commission noted that the vast majority of the responses were in favour of extending the time limit to bring claims, suggesting that the original aim of ensuing that the Tribunals offer a speedy and informal forum for resolving employment disputes is no longer appropriate given claims generally take longer to be resolved on account of their complexity and the large sums involved.
If implemented, it is hoped that these detailed and pragmatic recommendations will increase the protections available to employees and workers in the employment tribunals against discriminatory and unlawful practices.
The Report makes is clear that the Commission do not wish to encourage or endorse any major restructure of the current Tribunal system, but rather the recommendations are intended to fine tune the way in which the Tribunals operate. The Tribunals are quite deliberately set up to operate in a different way to the civil courts, and the Report makes it clear that their specialist nature must be retained.
Will impact of Coronavirus make a difference?
However, whether the current COVID-19 situation will lead to further proposed changes to the tribunal system, or whether it will cause these proposals to fall by the wayside remains to be seen.
For example, in the past weeks, several justice bodies have urged the Lord Chancellor to temporarily double the time limit for discrimination or harassment claims to protect employees during the Covid-19 pandemic. It has been suggested that even before the current crisis, it took an average of nearly nine months for a case to conclude, and this will only worsen post-lockdown.
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