Extra time?
Ross Brymer comments on the Law Commission’s recommended changes to time limits in employment tribunal claims.
On 27 April 2020 the Law Commission published a report titled Employment Law Hearing Structures. One area of consideration was the time limit for bringing a claim in the employment tribunal, currently set at three months. Following a consultation, it was suggested that a number of claimants are prejudiced by the current three-month time limit for bringing a claim; particularly, those who wish to pursue internal grievance procedures and need to obtain legal advice are likely to be unduly affected by the current law. Reference was also made to employers who would be adversely affected if the time limit was extended by too much. The Law Commission concluded that extending the time limit to six months for all tribunal claims struck an appropriate balance between facilitating access to justice for employees and providing certainty on behalf of the employers.
During the consultation the Law Commission also asked if changes should be made to the test for extending time limits in tribunal claims. Currently time limits in claims such as unfair dismissal can only be extended where it is “not reasonably practicable” to bring the claim in time. Over two thirds of the consultees approved changing the test to allow tribunals to grant extensions where it considers it “just and equitable” to do so. This test aims to add flexibility, allowing tribunal judges to consider a wider range of factors including the possibility of prejudice between the parties and deliberate delay. The proposed change to the test makes it clear that the discretion of the tribunal to grant an extension remains fettered and that the burden still lies with the claimant to prove that it is just and equitable to do so in the circumstances.
The outcome of the consultation is that the Law Commission is making recommendations that in all claims:
- the time limit for making a claim in the employment tribunal should be extended to six months; and
- tribunals should have discretion to extend time limits where it considers it is just and equitable to do so.
In total 23 recommendations have been made in the report including increasing the power of the employment tribunal to award damages for breach of contract up to £100,000 (previously £25,000) and allowing tribunals jurisdiction to hear complaints from employees working longer than maximum working time limits. Full details of the recommendations are contained in the report.
The report itself will not directly change the law; it will be presented to the Government who will provide an interim response within six months of publication with a full response to follow within the year. The full response will detail which of the recommendations have been accepted in their current state, which will be accepted in an amended form and which have been rejected. Historically more than two thirds of the Law Commission’s recommendations have been accepted and we will provide you further updates as they become available in future bulletins.
