Employment Law Hearing Structures

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

We have published our report on Employment Law Hearing Structures.

Read the Employment Law Hearing Structures report.

Read the summary of the Employment Law Hearing Structures report.

Read the Welsh summary of the Employment Law Hearing Structures report.

All the supporting documents can be found at the bottom of the page.

The problem

The Civil Courts Structure Review led by Briggs LJ noted that there is 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”.

They can cause delay and unnecessary complexity. They can also prevent cases being determined by the judges best equipped to handle them. In some types of proceedings, related claims have to be brought in two different courts.

The project

This project came out of our 13th Programme of Law Reform and started in December 2017. Our consultation paper was published on 26 September 2018. Consultation closed on 31 January 2019.

The objectives of the project are to:

1. remove unnecessary anomalies, discrepancies and issues which arise from the demarcation of jurisdictions in the fields of discrimination and employment law;
2. increase efficiency by ensuring that employment and discrimination cases are, where possible, determined by the judges who are best equipped to hear them; and
3. review overall whether the demarcation of jurisdictions and the restrictions on employment tribunals’ jurisdiction are fit-for-purpose and in the interests of access to justice.

The Ministry of Justice and the Department of Business, Energy, Innovation and Skills (BEIS) are in the process of reforming the Employment Tribunal system as part of the modernisation of the courts and tribunals system. They have indicated that there are no plans to consider radical structural change.

Our report works within the boundaries set out by the Government’s position to make recommendations for addressing the problems by means short of major restructuring.

Next steps

Our report makes 23 recommendations. These include: increasing time limits for bringing employment tribunal claims; introducing a just and equitable test to extend time; 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 employment has terminated; increasing the financial limits on contractual claims; extension of jurisdiction to hear breach of contract claims from workers as well as employees.

Government response

The Department for Business, Energy and Industrial Strategy, which oversees Government policy in respect of a significant number of the recommendations we have made, set out the Government’s response to the report in June 2021. The Government’s focus is on addressing the impact of COVID-19 on the labour market, while it highlighted measures taken to boost hearing capacity in Employment Tribunals. The Government accepted part of our recommendations aimed at improving the enforcement of tribunal judgements. On the whole, the majority of our report’s recommendations have been deferred for later consideration, as the Government considers its policy.

A number of our recommendations, meanwhile, were separately considered by the Ministry of Justice and the Government Equalities Office, who jointly responded to the report on 15 June 2022. This pointed to ongoing consideration of the case for extending the time limit for Equality Act based cases (except for equal pay) to six months as part of the Sexual Harassment in the Workplace consultation. It noted that a compelling case had been made by respondents for such an extension, including in pregnancy and maternity discrimination cases as well as sexual harassment cases. As to the general recommendations on time limits, extending time, contribution, the response did not commit to implementing our recommendations at the present time. The response noted that recommendations going to the flexible deployment of expert judicial resource across tribunals and courts were a matter for the judiciary, though it welcomed the aim of supporting the efficient operation of the employment dispute resolution system.

Contact

By email to employment-law@lawcommission.gov.uk