Following an 18-month consultation process, the Law Commission has published its report into employment tribunals, recommending increased powers for the service - something we at Thompsons welcome.

The independent statutory body, which reviews laws in England and Wales and makes recommendations for reform where necessary, has put forward proposals for reform on the jurisdiction of employment tribunals, particularly where they overlap with the civil courts on employment and discrimination matters. 

The Law Commission report 'Employment Law Hearing Structures' makes 23 recommendations for reform of employment tribunals, including widening the tribunals jurisdiction and increasing the time limit for bringing employment tribunal claims.

The key recommendations are to:

  • Increase the time limit from three months to six months for all types of employment tribunal claims.
  • Extending the discretion tribunals have to extend the time limit where it is just and equitable to do so. This extension will replace the more restrictive ‘reasonably practicable’ test and create a level playing field by applying the same test to all employment tribunal claims
  • Give employment tribunals jurisdiction to hear breach of contract claims that arise during employment. This is in contrast to the current position, where tribunals have limited jurisdiction to hear contract claims that arise or are outstanding on the termination of employment.
  • Provide tribunals with the power to award damages in breach of contract claims of up to £100,000 – up from the current limit of £25,000.
  • Grant tribunals jurisdiction to hear complaints by those working in excess of the maximum 48 hours working time limit.
  • Give employment tribunals the power to interpret or construe written particulars in employment contracts.
  • Allow equal pay claims to be transferred from the county court to the employment tribunal.
  • Investigate the possibility of creating a fast track for the enforcement of employment tribunal awards to ensure employees receive the compensation in a timely fashion, and extend the penalty scheme so that it is triggered automatically.
  • Enable employment judges to sit and hear discrimination claims in the civil courts, and create a specialist list in the High Court to deal with employment and discrimination.

The key recommendations are welcome and particularly relevant in the current climate. 

Unions have long campaigned for an increase in the time limit, especially where a three-month timeframe puts undue stress on the claimant, such as when they have been dismissed on health grounds, are on parental leave or are disabled. There have also been calls for tribunals to have wider jurisdiction to hear breach of contract claims during and after employment, which the above now addresses.

However, the fact that the recommendations on enforcing tribunal awards - and extending the employment tribunals penalty scheme so that it is triggered automatically - are limited to investigating the possibility of fast track enforcement, is a missed opportunity for clear direction. The review also failed to cover other key areas, such as a review of the two year qualifying period to claim unfair dismissal and the cap on compensation in unfair dismissal claim (of particular importance in the current climate) because they were considered to be matters of policy. 

The government has made much of its commitment to the worker. There is now an opportunity to show whether it is genuine by accepting these long considered recommendations from a key law reform advisory body as a matter of urgency, and as part of a package of measures to improve access to justice for workers following the current lockdown.