Employment Tribunal Reforms: Will the current Employment Tribunal system change?
In some respects, the employment tribunal is an anomalous court. There is a limit on the types of legal claim which an individual can pursue in respect of matter arising of out their employment with an employer. In complex cases, especially those involving a discrimination or personal injury element, there can be significant procedural delays as proceedings often need to be paused to allow other courts the opportunity to determine relevant preliminary issues. High value contractual claims are also problematic, there is a cap in the employment tribunal of £25,000 meaning that high value claims from high earners need to be heard in the civil court and in cases where an individual is engaged as a worker as opposed to an employee, similar issues can present.
For the most part, claims brought by employees against an SME employer will generally be considered by the employment tribunal and generally the litigation process will be fit for purpose. That said, there is campaign for change and in January 2019, Sir Ernest Ryder, the Senior President of the Tribunals, published a report on the Modernisation of Tribunals, which set out a wider strategy for the reform of the tribunals (including employment tribunals) as part of the wider Courts and Tribunals Modernisation Programme implemented following the Briggs Review of the Civil Courts Structure in July 2016.
The Briggs review said that there currently exists an “awkward area” of shared and exclusive jurisdiction in the fields of discrimination and employment law, which has generated anomalies and boundary issues between the courts and employment tribunals. As a result, employment tribunals sit “uncomfortably stranded between the Civil Courts and the main Tribunal Service”. The Briggs review suggested that the current employment tribunal system can cause delay and unnecessary complexity. It also suggested that it could prevent cases being determined by the judges best equipped to handle them- currently, in some types of proceedings, related claims have to be brought in two different courts.
In April 2020, the Law Commission published its report on ‘Employment Law Hearing Structures’ which made 23 recommendations with the aim of improving the ability of employment tribunals to resolve employment disputes effectively and justly in one place. In terms of practical suggestions the report proposed measures including: the introduction of digital case files; a library of relevant templates from which standard documents can be produced and digitally recording all proceedings. Some jurisdictional proposals included:
- Having one single time limit for bringing employment tribunal claims of six months (most of the commonly brought claims are currently subject to a three-month time limit)
- Expanding the just and equitable test to extend time for all types of claims
- Introducing flexible deployment of judges to permit employment judges to hear discrimination claims in the civil courts
- Creating a specialist list in the High Court
- Increasing the jurisdiction of employment tribunals to hear claims for damages for breach of contract by employees and counterclaims by employers during the currency of a contract of employment and to hear claims in relation to alleged liability arising after a contract has terminated
- Increasing the financial limits on contractual claims from £25,000 to £100,000
- Extension of jurisdiction to hear breach of contract claims from workers as well as employees
The full report can be found here: https://www.lawcom.gov.uk/project/employment-law-hearing-structures/
Adoption of the report’s recommendations is now a matter for the government and a final response will be published ‘as soon as possible’. In the meantime, BEIS (the sponsoring department for the Employment Tribunals Rules of Procedure) is involved in conducting an engagement exercise about the recommendations and the proposed changes. It remains to be seen if and how the tribunal system will change but if the proposed recommendations are changed- especially those in relation to claim time limits and jurisdictional scope (which will invariably benefit claimants), it may be that businesses begin to find themselves at risk of being in the employment tribunal in an increased number of instances.
Author: Charlotte Geesin, Legal Director at Howarths