Law Commission’s Report on Employment Law Hearing Structures

The Law Commission has today published a report on a number of matters which will represent a major shake up to the way employment issues are litigated in England and Wales.

Some of the most noteworthy changes are:

1. That the employment tribunal will be entitled to hear contractual claims from limb ‘B’ workers (that is those who personally provide work under a contract, other than a contract of employment) and that more generally, the Tribunal’s jurisdiction to hear contractual claims will be increased from the current compensation cap of £25,000 to £100,000. This would be a welcome change and will go some way to helping high earners or those with long notice periods (such that the value of any breach of contract claim is over £25,000) from having to enforce their contractual rights in the County Court instead of with their statutory claims (unfair dismissal, discrimination etc) in the Employment Tribunal.
2. To have a single time limit of six months for all employment tribunal claims (including claims that share jurisdiction with the Employment Tribunals, such as breach of contract claims). Whilst there is no doubt that there are complexities that arise in connection with time limits for employment matters, such as ‘continuing acts’ of discrimination, it is doubtful the a ‘one size fits all’ approach will achieve the simplicity that is sought.
3. In claims where the time limit at present can be extended where it was “not reasonably practicable” to bring the complaint in time (for example, an unfair dismissal claim), the report recommends that employment tribunals should have discretion to extend the time limit where they consider it ‘just and equitable’ to do so. This is the current test in discrimination time limit cases and, in broad terms, is a ‘lower’ hurdle to overcome.
4. That an informal ‘specialist list’ be established for employment-related claims and appeals within the High Court Queen’s Bench Division dealing with, for example, restraint of trade, breach of confidence, equal pay and industrial action injunctions. This will ensure that these cases are heard by judges in the High Court with relevant specialist expertise. This would be a welcome development and is likely to cut hearing times and ensure more consistent outcomes.
5. That employment tribunals should not be given the power to grant injunctions. This is not unexpected but it means that enforcing post termination restrictive covenants and protecting confidential information will remain a comparatively expensive exercise only available to some employers.
6. That employment judges with experience of hearing discrimination claims lend their expertise to the County Court on discrimination cases. This would be welcome development.

Whilst only recommendations, the details laid out in the Law Commission’s report will come as welcome developments for many.

If you wish to discuss this topic further or have any other questions, please contact Linky Trott or any member of the Employment Law team.

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