Cloisters’ barrister Sally Robertson writes on the long awaited Law Commission report.

Giving us all a breath of fresh air amidst the gloom of lockdown, the Law Commission has finally published its report on Employment Hearing Structures. The report comes almost 15 months after the end of its consultation exercise. It is detailed, with a pragmatic approach resulting in 23 recommendations. Cloisters’ response to the consultation can be found here.

Headline recommendations are:

  • Time limits for all employment tribunal claims be extended to six months (including claims where tribunals retain concurrent jurisdiction with the civil courts)
  • A single test for extending time in all claims: whether it is just and equitable to do so.
  • Enabling time for bringing an equal pay claim to be extended where it is just and equitable to do so.
  • An increase in the limit on bringing employment-related contract claims or counterclaims in tribunals from £25,000 up to £100,000
  • Extending the tribunal contract jurisdiction, so tribunals can hear claims from workers as well as employees; can hear claims about alleged breaches as they arise during the currency of the employment, not just those existing at the time of its termination; and can hear claims about post-termination breaches
  • Flexible deployment of judges, enabling employment judges to hear discrimination claims in the civil courts, and creating a specialist list in the High Court to deal with employment and discrimination claims
  • Among other matters, the specialist list would deal with appeals from the county court in goods and services discrimination claims and from any other employment related cases

One of the Report’s objectives had stemmed from the Briggs Review. That Civil Courts Structure Review had noted an “awkward area” of shared and exclusive jurisdiction which had led to anomalies and boundary issues between courts and tribunals. The suggestion was that this left employment tribunals “uncomfortably stranded between the Civil Courts and the main Tribunal Service”.

Despite that unpromising perspective, there is no major restructuring. Nor are there any big surprises. The Commission is clear that its starting point is that employment tribunals were designed to have different characteristics to the civil courts. Its recommendations reflect those characteristics and the specialist nature of employment tribunals.