The Law Commission has now set out its full consultation document on what it refers to as ‘Employment Law Hearing Structures’. The recommendations, if accepted by the government and passed into law, could have a significant impact on the Employment Tribunal (ET) system and put more pressure on an already overworked and under-resourced organisation.

By way of background, the Law Commission is a statutory independent body created by legislation. Its job is to keep the law of England and Wales under review and to recommend reform where it is considered necessary.

The Law Commission’s recommendations largely come out of its belief that there is an “awkward area” of shared and exclusive jurisdiction in the fields of discrimination and employment law between the ET system and the Civil Courts. The Law Commission proposals seek to solve the problem of this ‘awkward area’ of shared and exclusive jurisdiction as well as potentially implementing other significant changes to the way in which employment claims are handled.

The Law Commission’s proposals include:

  • suggesting that ETs hear common law claims about employment references;
  • giving ETs the power to apportion liability in discrimination claims;
  • asking whether non-employment discrimination claims should be heard in ETs;
  • questioning whether breach of contract claims should be allowed in the ET where an individual is still employed (at this time this is not possible);
  • suggesting that ‘workers’ (as opposed to employees) should be allowed to bring breach of contract claims in the ET;
  • changing the reasonably practicable test to become one of just and equitable; and
  • probably the most significant proposal, abolishing the 3 month time limit for the bringing of most ET claims.

In our opinion, abolishing the 3 month time limit for bringing claims in ETs is unlikely to be accepted. This would almost certainly be unacceptable to business and place further burdens on businesses in what is already a very challenging economic market. Business also needs certainty that once a limitation period has ended there should be no further risk of a claim; to have the threat of a claim hanging over a business indefinitely is unacceptable.

A number of the other proposals, in particular the ability to apportion liability in discrimination claims and to hear common law claims about employment references, make sense. We would expect these changes to be implemented at some point in the future. The above changes are not law. Consultation on the proposals remains open until 11 January 2019.

The government will have enough on its plate after the end of the consultation period given Brexit. If any of the above suggestions are implemented (which we think is probable), it’s likely they won’t be implemented for some time yet.