Employees may have longer to bring tribunal claims

Law Commission consults on extending ‘disproportionate’ three-month limit

Independent legal watchdog the Law Commission is considering extending the time limit allowed for tribunal claims to be submitted, in a consultation launched last week.

Claims for unfair dismissal must currently be brought within three months, however this can be amended if a judge decides it is ‘not reasonably practicable’ for the ex-employee to meet that deadline.

The time limit is also three months for discrimination claims, but judges must decide whether it is ‘just and equitable’ to extend the time limit. Claims for redundancy pay and equal pay already have the longer time limit of six months.

The Reforming Employment Law Hearing Structures consultation paper asked if the varying time limits should be rationalised into a more consistent and “slightly more generous” time limit of six months, or whether the power to extend the limit should be at a tribunal’s discretion.

The paper stated that the consultation “gives an opportunity to take stock of how employment tribunals have evolved, of the various time limits of three to six months depending on the nature of the claim, and of the different tests for extending time to bring a claim.” 

It added the short primary time limit and strict test for extending it derived from the original concept of tribunals as a forum for the “speedy” and “informal” resolution of employment disputes. While stating this was still true to an extent, the commission suggested more sophisticated guidelines were now needed to address “far more complex” cases “of much higher value”. 

The report continued: “It could be considered anomalous that there should be such strict time limits for some employment tribunal claims.”

Claire Dawson, head of employment at Slater and Gordon, welcomed the proposed shift, saying it would especially benefit victims of sexual assault who may delay coming forward. 

Dawson added: “The three-month time limit is also particularly disadvantageous to employees who have been dismissed when pregnant or while on maternity leave, as they are focusing on giving birth and caring for a newborn rather than submitting a claim. The very strict time limits for presenting a claim do not seem proportionate in those circumstances.”

Last year, Mike Penning, Conservative MP for Hemel Hempstead and former minister in the Ministry of Justice, called for the time limit to be doubled to offer more flexibility to those who had left employment under difficult circumstances.

Asa Waring, legal director at Mishcon de Reya LLP agreed updated limits would better serve a diverse range of employees. She said it was vital the courts recognised the challenging circumstances of new and expectant mothers in relation to the short three-month time limit.

A blanket six-month limit on all cases makes sense, she added, because “it would provide more certainty and above all more consistency.” 

Max Winthrop, chair of the Law Society’s Employment Law Committee and partner at Short Richardson & Forth Solicitors, said: “Both sides in an employment dispute want certainty, and I think it is questionable whether the current law gives that at the moment. These issues are ideally suited to the type of objective scrutiny that is inherent in the Law Commission’s approach.”

However, Andrew Willis, head of legal at CIPD HR-Inform, urged caution. He said: “The consultation asks whether the time limit should be extended in general or for specific cases. Different time limits for different cases could lead to more failures to comply with these where there is a lack of understanding about which time limit applies to an individual’s claim, especially where there are multiple allegations.”

He added longer time limits would leave employers uncertain whether an individual is bringing a tribunal claim against their business or not. 

“This creates a significant period of uncertainty over a business,” he said, “especially because the statistics show the increase in claims against employers does not show any sign of slowing down.”

The consultation closes on 11 January 2019.