On 26th September 2018 the Law Commission issued a consultation paper on Employment Law Hearing Structures. The consultation is due to conclude on 11th January 2019 after which recommendations will be presented to the Government.  So what might be in store for Employment Law hearings and how might this impact on employers?

One of the proposals set out in the paper is an extension of the limitation periods in Employment Tribunal, in most cases extending this to 6 months. For the majority of statutory employment claims the time limit is currently set at 3 months.

First and foremost it should be noted that a 6 month limitation period would not mean that once those 6 months are passed an employer is home and dry. Prospective Claimants must, in the vast majority of circumstances, go through early conciliation before a claim can be made in the Employment Tribunal. That process is ordinarily 1 month but can be extended by 2 weeks with consent of both parties. Once the Early Conciliation process is concluded a Claimant will then have at least 1 month to bring the claim. Taking that into consideration, if a Claimant so wishes, they can leave the initial notification to the last day of the time limit and effectively give themselves an additional month plus the time the clock is stopped. Moreover, whilst a Claimant may have to notify ACAS they do not have to approve contact being made to the Respondent and will ordinarily be given some time to make this decision if so required so employers can languish in blissful ignorance of the ongoing process and know nothing of a Claimant’s intentions until Tribunal papers land at their doorstep. EML’s Litigation Consultant, Cheryl Moolenschot, talks us through the practical implications for employers should the proposed extension be enacted:

Imagine you dismiss someone on 1st January. Under the current time limits, utilising all extensions available and leaving notification till the last day, a Claimant could submit their claim, for example a claim for unfair dismissal, up to 13th June.  Under the proposed 6 month time limit that date could get to 13th September 2018. Those extra 3 months will certainly have a negative impact on witness recollection particularly when you consider those involved earlier on in the process, such as Investigating Officers. Whereas a Claimant has a strong personal interest in the events which give rise to their claim and will be able to recollect detail for a longer period and in greater depth those whose involvement is purely professional, and especially those who carry out a number of formal processes due to their position in the company, will, as time goes by, struggle more and more to differentiate and recall an individual process. There is also, of course, an increased likelihood that persons involved in the process could have moved on during the intervening period. Put short, an extension is unlikely to be good news for employers and when placed in the context of existing delays due to staffing currently being noted by many of our Employment Tribunal Centres following the fees being abolished the picture would be even bleaker.

The consultation paper also raises the question of whether Employment Judges should be granted the discretion to extend time in types of claim (such as unfair dismissal) where the time limit, at present, can only be extended where it was “not reasonably practicable” to bring the complaint in time. The change proposed is to apply the “just and equitable” test currently applied in limited claims such as discrimination claims brought under the Equality Act 2010 and certainly provides a much wider discretion for allowing in claims that would otherwise have been out of time. Again, this is unlikely to be welcome news for employers as it will likely give rise to Respondent’s having to defend claims that would otherwise have been struck out and dismissed for want of jurisdiction.

Another key change which is likely to be met with discontent from employers is the consideration being given to raising or removing the £25,000 limit for breach of contract claims, and allowing Employment Tribunals to hear such claims while the employee remains employed. Under the current regime such claims would be made in the Civil Courts and would be subject to fees and often subject to costs awards made against the losing party. Compare this to Employment Tribunal claims which no longer require payment of a fee and which seldom see costs awarded against the losing party and it becomes clear to see how this change may result in those less well founded claims being lodged with the Employment Tribunal should there be scope to do so.

All in all the new consultation puts forward some proposals which, if enacted, would likely see yet more claims being made and allowed to proceed within the Employment Tribunal system. Having seen such a stark increase in claims since the abolition of fees we have to ask, what changes will be made to protect the interests of businesses?