For employees wishing to bring an employment claim, timing is everything. The time limit for launching such a claim is generally three months. Matters have been further complicated by the introduction of rules which ‘stop the clock’ while compulsory Acas early conciliation takes place. Although employment tribunal fees may have been abolished, the Acas stage lives on and continues to create satellite litigation around technicalities.
From an employer’s point of view, it makes business sense to have a short time limit on claims being brought before memories fade, witnesses move on and documents are lost. The short limitation period also provides certainty so that an employer can budget and plan accordingly.
Earlier this year, however, the Women and Equalities Committee heard recommendations from employment specialists that employees who have suffered sexual harassment at work should have longer than three months to bring a claim.
Michael Reed, principal legal officer at the Free Representation Unit, said the time limit was 'bizarrely short'. He added: “Three months… is not a lot of time in practice – where something has happened and you're absorbing the blow of that, you're thinking about what to do…It's not that people can step out of the instant, walk round to their lawyer and say ‘I need some advice and can we think about putting a claim in’.” He is right, this certainly does not happen much in the real world.
The committee heard evidence that the three-month time limit for pregnancy and maternity discrimination cases also represented an unfair barrier to justice and failed to recognise the pressures on expectant mothers.
Research carried out by the Department for Business, Innovation and Skills, meanwhile, has revealed that pregnant women and mothers now face more discrimination at work than they did a decade ago. This does not suggest the law is working very well in this area.
Unfair outcomes result when employees wait until internal procedures or settlement discussions have taken place first and their claims are out of time. Employees are left without a recourse, having tried to resolve issues in a sensible way before approaching a tribunal.
Given the imbalance of power, the Women and Equalities Committee has called for the government to extend the time limit to six months and to pause the clock until internal complaints procedures have been completed. It seems these calls are not falling on deaf ears: at the end of September, the Law Commission launched a consultation to determine whether the three-month time limit should be extended to a more generous six months.
At a time when many employees are facing a tough financial situation caused by the loss of employment in a difficult economic climate, we can only hope that the law will be reformed so the priority is access to justice rather than expediency.
Rhian Radia is head of employment law and a director at Vardags