All change in employment tribunals?

Beverley Sunderland reports on changes that might follow from a recent government review of the employment law dispute resolution system

All change in employment tribunals?

The government has initiated a consultation, ending on 11 January 2019, to review the jurisdictions of employment tribunals (ETs), the Employment Appeal Tribunal and the civil courts in employment and discrimination matters and make recommendations for their reform. 

The consultation makes clear that this will not include a major restructuring of the ET system or consider major policy issues such as the limits on unfair dismissal compensation, but it will consider the following:

ET jurisdiction and time limits

  • Should areas of the law where ETs have exclusive jurisdiction, such as unfair dismissal and employment related discrimination, change? The initial view is no.
  • Should the time limits for bringing these claims be extended from three to six months?
  • Should the test to be applied when claims are out of time be ‘just and equitable’ for all claims, and not just reserved for discrimination claims?
  • In those areas of the law where jurisdiction is shared with the county court, such as discrimination, should this continue? The concerns are that county court judges have less experience, do not have the case management infrastructure and might make decisions which impact on carefully developed discrimination law – such as in Malcom v London Borough of Lewisham. While a system to transfer cases between the county court and the ET when appropriate could be implemented, the more favoured approach is to transfer judges between the county court and ETs.

Breach of contract claims

The consultation seeks views on the following:

  • Whether the limit of £25,000 in damages in the ET should be raised and if so, to what level?
  • Whether the time limits should be amended in line with any changes to unfair dismissal or to the county court limit of six years.
  • Whether ET breach of contract claims can be brought during employment. Currently the ET only has jurisdiction once employment has ended (other than unlawful deduction from wages claims).
  • Whether employers should be able to initiate breach of contract claims against employees – currently, employers can only bring a contractual counterclaim if employees claim breach of contract. The preliminary recommendation is that this does not change.
  • There is some doubt whether ‘workers’ can bring a breach of contract claim at all, and the recommendation is that the law is clarified so that worker claims can be brought, but not those who are genuinely self-employed.
  • Currently, ETs can rule on what should be included in a written statement of terms and conditions but not the interpretation of contractual terms (other than interpretation of the contract in unlawful deductions cases), and this will be consulted upon. 

Other claims in the ET

  • There is no jurisdiction to hear claims for personal injury (other than connected to discrimination), claims concerning the provision of living accommodation, relating to intellectual property, confidentiality nor restraint of trade or to issue injunction. The provisional recommendation is that this does not change.
  • Although ETs have jurisdiction to hear unlawful deduction from wages claims, this is only in respect of a clearly identifiable sum and the consultation asks if this should be extended to unidentifiable sums.
  • Equal pay claims can be brought in the ET (time limit six months) and the civil courts (time limit six years) and there is growing support for this to be the exclusive jurisdiction of the ET, but with a six-year time limit. The recommendation is to leave them in both jurisdictions but increase the time limit.

All those with views and interests are encouraged to take part in the consultation, to try and help shape the future of the employment tribunal system.

Beverley Sunderland is managing director at Crossland Employment Solicitors