Employment Law changes (proposal)

The Law Commission (Commission) has published its Employment Law Hearing Structures report, which contains 23 recommendations regarding areas of shared employment and discrimination jurisdiction between the civil courts and tribunals, restrictions on the employment tribunals’ existing jurisdiction, the exclusive jurisdiction of the county court in relation to certain types of discrimination claim, and the handling of employment disputes in the civil courts. The objective was to propose the removal of discrepancies.

1. the time limit for bringing a claim should be six months for all employment tribunal claims

2. in types of claim where the time limit for bringing the claim can at present be extended where it was ‘not reasonably practicable’ to bring the complaint in time, employment tribunals should have discretion to extend the time limit where they consider it just and equitable to do so

3. employment judges with experience of hearing discrimination claims should be deployed to sit in the county court to hear non-employment discrimination claims

4. employment tribunals should have jurisdiction to determine claims by an employee and counterclaims by an employer for damages for breach of, or a sum due under, a contract of or connected with employment notwithstanding that the employee’s employment has not terminated

5. employment tribunals should have jurisdiction to determine claims by an employee and counterclaims by an employer for damages for breach of, or a sum due under, a contract of or connected with employment notwithstanding that the alleged liability arises after employment has terminated

6. the current £25,000 limit on employment tribunals’ contractual jurisdiction in respect of claims by employees be increased to £100,000 and thereafter maintained at parity with the financial limit upon bringing contractual claims in the county court

7. the same financial limit on employment tribunals’ contractual jurisdiction should apply to claims by employees and counterclaims by employers

8. (1) the time limit for claims for breach of contract brought in an employment tribunal during the subsistence of an employee’s employment should be six months from the date of the alleged breach of contract; (2) the time limit for claims for breach of contract brought in an employment tribunal after the termination of an employee’s employment should be six months from the termination, but (3) where the alleged liability arose after the termination of the employment, the time limit should be six months from the date upon which the alleged liability arose

9. employment tribunals should have jurisdiction to determine claims and counterclaims for damages or sums due in respect of the provision by an employer of living accommodation

10. it be made clear that employment tribunals have the same jurisdiction to determine breach of contract claims in relation to workers within the meaning of section 230(3)(b) of the Employment Rights Act 1996 as they have in relation to employees within the meaning of section 230(1) of the Act

11. the extensions of the employment tribunals’ jurisdiction that we have recommended in Recommendations 4, 5, 6, 7 and 8 should apply equally to workers within the meaning of section 230(3)(b) of the Employment Rights Act 1996

12. employment tribunals should have the power to interpret or construe terms in contracts of employment in order to exercise their jurisdiction under Part I of the Employment Rights Act 1996

13. employment tribunals should have power to hear claims of unlawful deductions from wages that relate to unquantified sums. This power is sufficiently conferred by Recommendation 4

14. where an employment tribunal finds that one or more of the ‘excepted deductions’ listed in section 14(1) to 14(6) of the Employment Rights Act 1996 applies, the tribunal should have the power to determine whether the employer deducted the correct amount of money from an employee’s or worker’s wages

15. employment tribunals should have jurisdiction to apply set-off principles in an unauthorised deduction from wages claim under Part II of the Employment Rights Act 1996, limited to established liabilities for quantified amounts and to extinguishing the Part II claim

16. section 128(2) of the Equality Act 2010 be amended to provide a power to transfer equal pay cases to employment tribunals, with a presumption in favour of transfer

17. employment tribunal judges be given a discretionary power to extend the limitation period for equal pay claims where it is just and equitable to do so

18. employment tribunals should have jurisdiction to hear complaints by workers that they are working hours in excess of the maximum working time limits contained in regulations 4(1), 5A(1), 6(1) and 6A of the Working Time Regulations 1998

19. the maximum award applying to employment tribunal claims brought under the Employment Relations Act 1999 (Blacklists) Regulations 2010 is at least increased to, and maintained at, the level of the maximum award for unfair dismissal under section 124(1ZA) of the Employment Rights Act 1996

20. respondents to employment-related discrimination claims should be able to claim contribution from others who are jointly and severally liable with them for the discrimination. The test to be applied should mirror that in section 2(1) of the Civil Liability (Contribution) Act 1978
21. the government should investigate the possibility of:

(1) creating a fast track for enforcement which allows the claimant to remain within the employment tribunal structure when seeking enforcement
(2) extending the BEIS employment tribunal penalty scheme so that it is triggered automatically by the issuing of a tribunal award
and consideration be given to:

(1) sending a notice with the judgment to inform an employer that if it does not pay the award by a set date, it will be subject to a financial penalty
(2) sending a copy of the judgment to the BEIS enforcement team
(3) improving the information sent to successful claimants on how to enforce awards

22. an informal specialist list should be established to deal with employment and discrimination-related claims and appeals within the Queen’s Bench Division of the High Court

23. subject matter within the remit of the new List should be:

(1) employees’ claims for wrongful dismissal or other breach of contract where the sum claimed exceeds the limit on tribunals’ jurisdiction under the Extension of Jurisdiction Order
(2) employees’ equal pay claims
(3) employers’ claims to enforce covenants in restraint of trade
(4) employers’ claims for breach of confidence or misuse of trade secrets
(5) employers’ claims against trade unions for injunctions to prevent industrial action or for damages following what is alleged to be unlawful industrial action
(6) claims arising in ’employee competition’ cases such as team moves and garden leave
(7) appeals from the county court in claims for discrimination in goods and services
(8) appeals from the county court in employment-related cases

Source: LexisNexis