Law Commission Consultation - improving access to justice in Employment Tribunals
January 2019
The Law Commission is currently engaged in a consultation which is of considerable significance for all those who are concerned with employment rights. In formal terms, it is a “review of employment law hearing structures”. Despite the technical skew which that appears to give the project, the questions which it asks are of immense importance in ensuring access to justice.
The full consultation paper is available on the Law Commission’s website at https://www.lawcom.gov.uk/project/employment-law-hearing-structures/. It is well worth a read for the lucid summary which it provides of the jurisdictions covered by the employment tribunal and the civil courts.
But, ignoring the conventional advice about grandmothers and the sucking of eggs, I am going to focus on a couple of issues which are of particular importance in ensuring that employment rights are accessible and effective.
Time Limits
The first topic is that of time limits, covered in Consultation Questions 2 and 3, and dealt with in pages 17 to 21 of the full paper. As employment practitioners are well aware, the usual time limit for tribunal claims is three months. This is the case, for example, with respect to unfair dismissal. The time limit is a very short one, compared with that applicable to most claims litigated in the civil courts (compare six years for a contract claim in the civil courts, three years for tort). Further, the discretion available in relation to unfair dismissal and a number of other claims is very limited. As is notorious, the ET can only extend the primary time limit in those claims where it was ‘not reasonably practicable’ for the claimant to meet the primary time limit and the claim is presented within a reasonable time thereafter.
The standard reason put forward for the very tight time limit is that the ETs were conceived as a forum for the speedy, informal resolution of disputes arising from employment. That may well have had some historical validity. But many ET cases are much more complex than they were when the right not to be unfairly dismissed was introduced in 1971. Further, it is common these days for a claimant, having been pushed into presentation of the claim within three months, to have to wait a year or more before the ET is available to hear it.
In any event, the short time limit does not pay due regard to the mental state of the dismissed employee, struggling to cope with the financial consequences of the sack, looking for advice and representation, looking for new employment and trying to come to a rational decision about whether to bring a claim and how best to frame it. Three months is too short, and cannot be justified when measured against the six years for a claim for breach of contract in the civil courts.
There is also a question posed about the discretion of the ET to extend the time limit. For the majority of claims (including unfair dismissal and various wages claims), the “not reasonably practicable” test applies. This is markedly less generous than the test for discrimination claims, where the ET can extend time if it is “just and equitable” to do so. This can lead to the strange anomaly, in the case of a dismissal which is alleged to be discriminatory, where the ET may well decide that it was reasonably practicable for the claimant to present the claim in time, so that the unfair dismissal claim fails, but it is just and equitable to extend time, so the claim for discrimination can proceed! This not uncommon result understandably makes the law look unnecessarily foolish.
If the two tests are to be rationalised, which should prevail? Surely the “just and equitable” test is the one which meets the needs of justice more fittingly. It allows the ET to take into account not just the reason why the claim is presented late, but all the other relevant circumstances, including the crucial question whether its lateness has actually meant that the case cannot be fairly tried. Again, bear in mind the six year limit for breach of contract claims in the civil courts to see whether the law generally regards such delay as a fatal problem.
So Consultation Question 2 asks:
“Should there be any extension of the primary time limit for making a complaint to employment tribunals, either generally or in specific types of case? If so, should the amended time limit be six months or some other period”
I would suggest that the answer to the first part is clearly “Yes”. Six months would be a substantial improvement on the present position, and is not so far removed from current situation as to be unrealistic.
Consultation Question 3 asks:
“In types of claim (such as unfair dismissal) where the time limit can at present only be extended where it was ‘not reasonably practicable’ to bring the complaint in time, should employment tribunals have discretion to extend the time limit where they consider it just and equitable to do so?
Again, I would suggest that the answer is clearly “Yes”. To conclude otherwise implies, after all, that the ET should refuse to hear some cases where it would be just and equitable to hear them.
Enforcement of Awards
The other issue of particular significance raised within the consultation is that of enforcement of ET awards. The current scandalous position is that the majority of successful claimants do not receive the full award laid down in the ET judgment. The context is that ETs have no power to enforce their own judgments. It is clear that this is a major contributor to the system’s failure to ensure that claimants receive the money to which the ET has determined that they are entitled.
The matter was raised by the Taylor Review of Modern Working Practices. It recommended that “Government should make the enforcement process simpler for employees and workers by taking enforcement against employers/engagers who do not pay employment tribunal awards, without employees/ workers having to fill in extra forms or pay an extra fee and having to initiate additional court proceedings”.
This particular recommendation of the Taylor Review is both clear and sensible. It has three elements:
The only way to guarantee these outcomes is for the ETs to have the power to enforce their awards. They can be relied on to do this because they have ownership of the decision which they have made, whereas reference to any outside agency (such as the enforcement methods currently available in the civil courts) will fail the Taylor tests.
The relevant Consultation Question is No.50 which reads:
“Should employment tribunals be given the jurisdiction to enforce their own orders for the payment of money? If so, what powers should be available to employment tribunals and what would be the advantages of giving those powers to tribunals instead of leaving enforcement to the civil courts?”
It is suggested that the answer to the first part of the question should be “Yes”. As to the second part, the powers given to ETs should be those currently in the hands of the civil courts, including the seizure of goods, charging orders preventing respondents from selling their assets, and bankruptcy proceedings. The reasons for giving the powers to ETs would be to fulfil the three-part test set out by the Taylor. The effectiveness of the process would be enhanced because it would be in the hands of an institution which would be committed to the implementation of its own decisions, with the necessary background knowledge to carry them out.
The closing date for the Law Commission consultation is January 31, 2019, having been extended from 11 January. Although there are 50 questions, many of which are of interest, those responding can answer as few or as many as they choose. Individuals and organisations are invited to respond, and I hope that some of the recipients of this Newsletter will be among those responding.
John Sprack
January 2019
If you would like to receive copies of my Employment Law Newsletter in future, please email me jmstraining@btinternet.com .
Past copies are available on my website johnsprack.co.uk .
