IS CHANGE AFOOT IN THE EMPLOYMENT TRIBUNAL?
While everyone else seems to have been busy keeping abreast of the latest changes to the Government’s Job Retention Scheme, last week the Law Commission for England and Wales (LC) published its Report on Employment Law Hearing Structures, following a consultation exercise with a large number of organisations and individuals, including the ELA, ELBA, GMB, TUC, Council for Employment Judges, Employment Appeal Tribunal Judges and Association of HM’s District Judges.
Should the 23 recommendations in the Report – highlighted below - be accepted by the UK Government, it is hoped that Scotland will follow suit.
The Report ushers the potential for major procedural changes in the Employment Tribunals.
The Report's main recommendations, in summary, are:
1. To have a single time limit for ET claims of 6 months;
2. For extensions of time, to replace the "reasonably practicable" test with a universal "just and equitable" test;
3. Employment Judges are generally to lend their expertise to the civil courts in discrimination cases;
4. The expansion of the contractual jurisdiction of the ET to include claims brought by employees and workers while they are still employed, and to limb 'B' workers;
5. To raise the contractual damages limit from ￡25,000 to ￡100,000;
6. ETs should not be given the power to grant injunctions;
7. An informal list be set up in the QBD for all employment and discrimination work.
The full Report is here:
The following is a whistle-stop tour (promise!) through the contents of the most important and significant parts of the Report (which weighs in at a whopping 212 pages), together with some of the more interesting debates the LC had with itself in coming to its conclusions:
The Report begins with an introduction as to the history of the ET, and the ISSUES UNDER REVIEW.
It is recognised that ETs have very different characteristics from civil courts and were always intended to do so. These differences include the fact that the ET is generally a no-costs jurisdiction, often has a three-member composition, tends to have less formality than the civil courts, and is not bound by any rule of law relating to the admissibility of evidence in proceedings. The Report considers these to be important characteristics which should be preserved.
ETs, being created by statute, have no inherent jurisdiction. It has long been observed that this creates anomalies. The demarcation of the jurisdiction of the civil courts and ETs over employment and discrimination matters can mean that Claimants cannot resolve their whole dispute in one forum, and their claims are not necessarily heard by a judge with relevant expertise and experience.
The focus from the outset of the LC exercise has been on how to improve the existing system and remove any illogical anomalies arising from the demarcation of the jurisdictions of ETs and the civil courts, to increase efficiency and ensure consistency of approach, fitness-for-purpose and the interests of access to justice.
Chapter 2: The exclusive jurisdiction of the ET
ETs possess a number of characteristics which make them a uniquely appropriate and effective forum for resolving disputes in the areas over which they currently have exclusive jurisdiction. This formed the basis of the LC’s provisional view that the law in this regard should not change; to do otherwise could cause unnecessary confusion and complexity, and there were no strong policy reasons for change.
THE TIME LIMITS FOR BRINGING CLAIMS
The original concept of tribunals was as a forum for the speedy and informal resolution of employment disputes. While this concept remains valid to some extent, many ET cases are far more complex (and of much higher value) than was the case in the 1970s. There was a fear that the short, strict time limits were anomalous when claims may take as long as 10 or 12 months to proceed to a hearing.
The LC are persuaded that bringing a claim in 3 months creates difficulties for a significant number of Claimants. Some may prefer to pursue resolution through internal grievance processes. The increased complexity and value of ET claims means obtaining legal advice and representation is often crucial. On the other hand, increasing the time limit too much may be detrimental to employers because – for example - of the effect of witnesses’ recollection fading, staff turnover, and the destruction of relevant files and documents.
Overall, the LC do not think that lengthening the time limit from 3 to 6 months would be unduly burdensome for employers.
Consultees arguing both for and against a general increase of the time limits emphasised the importance of certainty for the parties. Having a consistent time limit for all types of employment claims will increase certainty and reduce complexity.
The LC took the view that a standard time limit of one year would be uncharacteristically long, with an attendant increased risk of memories fading.
Some consultees suggested that the event which triggers the time limit should be changed, for example, to the completion of an internal grievance process. This is not something the LC consulted upon and they did not make any recommendation in relation to it. It is, of course, open to the Government to seek views if it wishes to explore the matter further.
The LC conclude that a time limit of 6 months for all ET claims strikes an appropriate balance between facilitating access to justice for employees and providing certainty for employers and employees. This should apply both to claims within the exclusive jurisdiction of ETs and to claims over which ETs share concurrent jurisdiction with the courts.
Recommendation 1
“We recommend that the time limit for bringing a claim should be 6 months for all ET claims”.
The LC notes that many consultees felt that there was a particularly strong case against the current short time limit for bringing a claim in the context of harassment and pregnancy and maternity-related claims. It is, however, best left to the Government to decide whether to increase the limitation period further in the case of Equality Act claims.
Given that the LC recommend a consistent 6 month time limit for all ET claims partly because of the simplification involved, they saw the force of the argument for including any period of ACAS Early Conciliation within that time limit. But the main reason for extending the current short time limit is that it is too short. The policy of excluding periods of Early Conciliation is a separate matter. In addition, for claims which currently have a six-month time limit, such as equal pay claims, this reform would effectively reduce the amount of time a Claimant currently has to bring a claim. Protections would have to be introduced to ensure that prolonged Early Conciliation does not present an employee with a dilemma about making an ET claim. Therefore no recommendation is made on whether Early Conciliation should cease to suspend the time limit for bringing tribunal claims.
THE TEST FOR EXTENDING TIME
The LC were not persuaded by arguments against the “just and equitable” test on the grounds of uncertainty or prejudice to employers. The sharp edges of the “not reasonably practicable” test risk producing arbitrary and unjust outcomes. The “just and equitable” test is better suited to allow ETs to assess all legitimate reasons, taking into account the wider circumstances of the claim and the position of the Respondent. The test facilitates more just and fair outcomes.
No consistent picture emerged from consultees’ responses as to the impact on the resources of ETs, if any, of replacing the “not reasonably practicable” test with the “just and equitable” test. Some consultees argued that it would alleviate the caseload of ETs, by reducing the number of preliminary hearings which are often held on the “not reasonably practicable” test. Other consultees argued the opposite, suggesting that deploying the test across the board would take up valuable judicial resources on the question of extending time. The LC made clear that they could not predict what, if any, effect reforming the test would have on tribunal resources but expected the recommended increase in the time limit to reduce the number of applications for an extension.
Recommendation 2
“We recommend that in types of claim where the time limit for bringing the claim can at present be extended where it was “not reasonably practicable” to bring the complaint in time, ETs should have discretion to extend the time limit where they consider it just and equitable to do so.”
Chapter 3: Restrictions on the Jurisdiction of ETs – Discrimination
There was some debate about the consolidation of discrimination law into a single statute in the Equality Act 2010, and whether that meant claims under the Act must be heard in a single specialist forum. The LC didn’t think this necessarily followed. That was a distinct and further policy decision, bearing in mind, for instance, what some consultees said about a single equalities tribunal inappropriately moving discrimination law out of the mainstream of civil law.
Many consultees were concerned that the ETs’ workload is proving challenging even within the current limits of their jurisdiction. Transferring non-employment discrimination jurisdiction entirely to the ET would be a major alteration, creating a single “employment and equalities tribunal”, raising important justice policy issues and outside the LC terms of reference). The LC do, however, go on to consider how best to use employment judges’ discrimination expertise outside the employment field.
CONCURRENT JURISDICTION
There is force, said the LC, in the argument that employment judges are, in at least some cases, better equipped than general civil judges to hear and determine non-employment discrimination claims justly and efficiently (“the discrimination expertise” argument). More advantage should be taken of this expertise. This does not diminish the case for more training of the County Court judiciary in discrimination law. Nor does it mean that every case raising a non-employment discrimination issue should be heard by an employment judge. Suitable cases should be identified at an early stage.
The LC notes the strong support for assessors and considered that, where an allegation of discrimination forms a significant element of a County Court case, an employment judge could sit with an assessor where appropriate.
Recommendation 3
“Employment judges with experience of hearing discrimination claims should be deployed to sit in the County Court to hear non-employment discrimination claims.”
Chapter 4: Restrictions on the jurisdiction of ETs: the Extension of Jurisdiction Order 1994
OVERVIEW OF THE TRIBUNALS’ LIMITED CONTRACTUAL JURISDICTION
A claim that a term of an employment contract has been breached may, of course, be brought in the civil courts. But legislation has, in limited contexts, extended this contractual jurisdiction to ETs. Where ETs have not been given contractual jurisdiction by legislation, the civil courts retain exclusive jurisdiction.
The LC were not persuaded that allowing employees to bring contractual claims in the ET during their employment would tend to damage relationships between employers and employees. If an employee is considering bringing legal proceedings against their employer, it is likely that the relationship between them is under strain already. Indeed, it is arguable that facilitating such a claim may even go towards repairing the relationship when the tribunal either gives a remedy or explains why the complaint is misconceived.
On balance, the exclusion of contractual claims brought during employment does not fit well with the wider policy evident in the legislation of providing ETs as a forum for resolving disputes arising out of employment relationships. The LC therefore recommend the extension of the jurisdiction of the ET here.
Recommendation 4
“We recommend that ETs should have jurisdiction to determine claims by an employee and counterclaims by an employer for damages for breach of, or a sum due under, a contract of or connected with employment notwithstanding that the employee’s employment has not terminated.”
A large majority of consultees favoured extending jurisdiction so that tribunals could hear contractual claims where the liability arises after employment has ended, seeing the existing restriction as anomalous. Some consultees who disagreed made valid points about tribunal resources and the need for a link with employment. The LC conclude that the requirement for a link between the claim and the past employment will be satisfied as the 1994 Order only applies to claims under a contract of employment or a contract connected with employment, and the additional strain upon ETs caused by the addition of the present narrow category of claims will be slight. Neither is there any policy reason to exclude such claims.
Recommendation 5
“We recommend that ETs should have jurisdiction to determine claims by an employee and counterclaims by an employer for damages for breach of, or a sum due under, a contract of or connected with employment notwithstanding that the alleged liability arises after employment has terminated.”
The LC were persuaded that there should continue to be a limit on the value of contract claims which can be brought in the ET. This approach is consistent with that taken across much of civil litigation, where cases are often assigned to “tracks” designed to deal with cases of different monetary value or complexity. A limit would reflect the fact that the ET is generally a low-cost cases jurisdiction, with procedural rules designed accordingly.
The question then is at what level the new limit should be set. The LC thought that the limit should increase at least as much as by inflation, which would take it to ￡50,000, and that it should not exceed ￡100,000, which would then give ETs greater contractual jurisdiction in financial terms than the county court. There is no logical reason to set the figure at somewhere in-between.
The LC saw the greater logic in tying the figure to the financial jurisdiction of the County Court. Despite some concerns about the lack of costs-shifting powers in the ET, it was recognised that complete consistency could not be achieved. The costs-free nature of ETs’ jurisdiction recognises the imbalance of financial resources that typically (though not invariably) differentiates employment relationships from the generality of contractual relationships giving rise to litigation before the civil courts. There is also significant employment law expertise in ETs. A higher limit tends to reduce the need to bring related claims in more than one forum. Balancing these considerations, the LC were persuaded by the majority view of consultees that the limit on the ET’s contractual jurisdiction should be increased to ￡100,000.
Recommendation 6
“We recommend that the current ￡25,000 limit on ETs’ contractual jurisdiction in respect of claims by employees be increased to ￡100,000 and thereafter maintained at parity with the financial limit upon bringing contractual claims in the County Court.”
The same increased limit should continue to apply both to claims and counterclaims. These recommendations should ideally be implemented by amendment of the figure in article 10 of the 1994 Order.
Recommendation 7
“We recommend that the same financial limit on ETs’ contractual jurisdiction should apply to claims by employees and counterclaims by employers.”
Recommendation 8
“We recommend that:
(1) the time limit for claims for breach of contract brought in an ET during the subsistence of an employee’s employment should be six months from the date of the alleged breach of contract;
(2) the time limit for claims for breach of contract brought in an ET after the termination of an employee’s employment should be six months from the termination, but
(3) where the alleged liability arose after the termination of the employment, the time limit should be six months from the date upon which the alleged liability arose.”
The LC do not recommend extending the ETs’ jurisdiction to personal injury claims. A line has to be drawn. To extend the contractual jurisdiction without conferring jurisdiction over, for example, claims for negligence would create a different, and possibly more anomalous, borderline. Conferring jurisdiction over common law torts would require primary legislation and would raise issues as to which torts should be included. The County Court is better equipped to handle this type of litigation.
Recommendation 9
“We recommend that ETs should have jurisdiction to determine claims and counterclaims for damages or sums due in respect of the provision by an employer of living accommodation.”
The LC then turned to the issues of extending this contractual jurisdiction to limb ‘B’ workers. Given the overwhelming support from consultees for making it clear that the Extension of Jurisdiction Order does apply to workers as well as to employees, the LC maintain their provisional proposal to extend the right. This change is consistent with recent Government measures to improve the legal protection of workers more generally.
Recommendation 10
“We recommend that it be made clear that ETs have the same jurisdiction to determine breach of contract claims in relation to workers within the meaning of section 230(3)(b) of the Employment Rights Act 1996 as they have in relation to employees within the meaning of section 230(1) of the Act.”
Recommendation 11
“We recommend that the extensions of the ET jurisdiction that we have recommended in Recommendations 4, 5, 6, 7 and 8 should apply equally to workers within the meaning of section 230(3)(b) of the Employment Rights Act 1996.”
Chapter 5: Other restrictions on the jurisdiction of ETs
The LC agreed with the majority of consultees that ETs should have jurisdiction to interpret or construe terms in contracts of employment in order to exercise their jurisdiction under Part I of the ERA 1996. It is frustrating that employment disputes of this nature cannot currently be wholly litigated in the ET.
Recommendation 12
“ETs should have the power to interpret or construe terms in contracts of employment in order to exercise their jurisdiction under Part I of the Employment Rights Act 1996.”
Recommendation 13
“ETs should have power to hear claims of unlawful deductions from wages that relate to unquantified sums. This power is sufficiently conferred by Recommendation 4.”
Recommendation 14
“Where an ET finds that one or more of the “excepted deductions” listed in section 14(1) to 14(6) of the Employment Rights Act 1996 applies, the tribunal should have the power to determine whether the employer deducted the correct amount of money from an employee’s or worker’s wages.”
Recommendation 15
“We recommend that ETs should have jurisdiction to apply set-off principles in an unauthorised deduction from wages claim under Part II of the Employment Rights Act 1996, limited to established liabilities for quantified amounts and to extinguishing the Part II claim.”
Chapter 6: Concurrent jurisdiction over claims for equal pay and equality of terms
Some consultees expressed concern that the equal value procedural rules do not apply in the civil courts, as well as over the use of civil courts’ powers under section 128 Equality Act 2010 to strike out claims. The LC expect that fewer equal pay claims will be brought in the civil courts if a discretionary “just and equitable” power to extend the limitation period in equal pay cases is introduced in ETs.
If an “equal value” claim is brought in an ET, special procedural rules apply and experts can be sourced through ACAS. Neither the rules nor the experts are available in the civil courts. The general view of consultees was that this discrepancy risks ETs and civil courts taking inconsistent approaches. That problem could be resolved by the incorporation of the equal value procedural rules or other amendment into the Civil Procedure Rules.
The best solution would be for section 128 to provide for the transfer of equal pay cases to the ET. The LC recommend that there should be a power to transfer cases outright so that the whole case and not just particular issues can be transferred across. This would streamline cases, provide a more straightforward approach to costs, and make the best use of the expertise and procedures available in the ET. A transfer should be the general rule; cases that are unsuitable for transfer are likely to have particular features.
Recommendation 16
“We recommend that section 128(2) Equality Act 2010 be amended to provide a power to transfer equal pay cases to ETs, with a presumption in favour of transfer."
Recommendation 17
“We recommend that ET judges be given a discretionary power to extend the limitation period for equal pay claims where it is just and equitable to do so.”
Chapter 7: Concurrent jurisdiction over other employment law claims
TRANSFER OF UNDERTAKINGS (TUPE REGULATIONS)
There were no calls for the statutory jurisdiction of ETs over TUPE claims to be transferred to or shared with the civil courts, or vice versa. The consensus which emerged from consultees’ responses was that the existing system works well and does not give rise to any problems in practice.
Moreover, in some cases civil courts may be a more appropriate forum for the determination of claims under the TUPE Regulations. The LC recommendation that ETs be given jurisdiction to hear contractual claims brought by employees during their employment will, if implemented, enable a wider range of TUPE-related claims to be litigated in the tribunal, but the LC is in favour of preserving Claimants’ choice of forum.
WORKING TIME REGULATIONS
There was no suggestion that the powers of the HSE under the Working Time Regulations should be removed; there are good reasons for retaining them. But civil WTR claims are more appropriately heard within the specialist jurisdiction of ETs than in the general civil courts. An ET that rules in favour of such a complaint should also consider referring the matter to the relevant enforcement agency.
Recommendation 18
“ETs should have jurisdiction to hear complaints by workers that they are working hours in excess of the maximum working time limits contained in regulations 4(1), 5A(1), 6(1) and 6A of the Working Time Regulations 1998.”
THE NATIONAL MINIMUM WAGE
The retention of the civil courts’ inherent contractual jurisdiction over NMW claims was desirable, given that Parliament has chosen to create a contractual remedy. No change in the demarcation of jurisdictions is required in the NMW context.
TRADE UNION BLACKLISTS
The present demarcation of jurisdictions in relation to the Blacklists Regulations should remain.
As a minimum, the cap under the Blacklists Regulations should be restored to, and kept at, parity with the maximum award for unfair dismissal. The history of the Regulations suggests a policy intention for such. The LC did not, however, recommend raising the cap to a higher figure, or removing it. It would be anomalous if the financial jurisdiction of the ET exceeded that of the County Court. Applying the unfair dismissal cap to victims of blacklisting has some merit of consistency. The LC saw the force of the point that victims of blacklisting may be repeatedly refused employment, but the evidence available did not disclose a compelling need for ETs to have a greater financial jurisdiction. No consultee was aware of a case that had had to be brought in the civil courts because of the existing cap.
Recommendation 19
“We recommend that the maximum award applying to ET claims brought under the Employment Relations Act 1999 (Blacklists) Regulations 2010 is at least increased to, and maintained at, the level of the maximum award for unfair dismissal under section 124(1ZA) of the Employment Rights Act 1996.”
QUALIFICATIONS BODIES
The LC share the view of the majority of consultees that because a judicial review challenge in a High Court is distinct from a discrimination claim in an ET, both in terms of the legal tests applied and remedies available, the dual route of challenging qualifications bodies’ decisions should be retained.
POLICE MISCONDUCT PANELS
Claims made to the PAT and ETs by police officers may concern similar sets of facts and conduct, but they are separate claims involving the application of different legal tests and the availability of different remedies. The existence of the two routes of challenge does not pose any problems; rather it potentially prevents a police officer who has been discriminated against from securing adequate redress.
Chapter 8: Restrictions on orders which may be made in ETs
INJUNCTIONS
An injunction is an order of a court prohibiting a Respondent from doing something or requiring a Respondent to do something. Disobeying an injunction is punishable as contempt of court.
ETs do not have the power to grant injunctions and it is very rare for tribunals to have such a power. An ET does have the power to make an interim relief order in respect of certain dismissals which are alleged to be automatically unfair (e.g. for trade union activities). However, such interim relief orders, which are rarely made, are not injunctions and do not carry the sanction of contempt of court.
Any proposal to give ETs jurisdiction to grant injunctions (for example to prevent industrial action) would require primary legislation in a highly contentious area. It would require considerable additional training of employment judges and extensive administrative machinery. The considerable effort and expense involved in bringing this about would not be justified, and therefore there is no recommendation that ETs should be given the power to grant injunctions.
CONTRIBUTION AND APPORTIONMENT IN DISCRIMINATION CLAIMS
Until relatively recently, ETs had developed a practice of ordering that liability be “apportioned” between employer and individual Respondents in discrimination cases. As such, each was separately liable to the Claimant for part of the compensation.
However, the EAT then held that ETs were incorrect to have apportioned liability between co-discriminators. In Hackney London Borough Council v Sivanandan [2011], it was held that an ET does not have the power to apportion liability unless the harm caused by the two Respondents is genuinely different and hence divisible. If each Respondent has contributed to the same harm, the tribunal must make an award against them on a joint and several basis and may not apportion liability.
CONTRIBUTION BETWEEN RESPONDENTS
The LC asked consultees whether ETs should be given the power to make orders for contribution between Respondents and, if so, whether this right should precisely mirror the position in the civil courts or be modified to suit the employment context.
The current position is anomalous and needs improvement. The potential unfairness of one Respondent bearing the whole of a joint and several liability has been long recognised in the civil courts, and the approach of allowing contribution claims to remedy this potential unfairness works well there. The ET used to find the tool of apportionment useful to remedy the same unfairness.
The LC conclude that allowing Respondents to seek contribution against each other would be the best solution (as opposed to apportioning liability) and would also serve to bring the position into line with that of discrimination claims in the civil courts. A joint and several award with contribution better protects the position of Claimants, who can choose which Respondent to pursue for payment.
The LC did not favour giving ETs a choice between apportionment and a joint and several award with contribution. The choice would essentially only make a difference if one Respondent was insolvent. This is not a choice open to the civil courts: if ETs regularly apportioned liability, Claimants in employment-related discrimination cases would be at a financial disadvantage as compared to Claimants in the County Court pursuing other discrimination claims. Further, providing a choice between a joint and several or an apportioned award places an additional burden on all Claimants, and could affect their ability to recover any sum awarded.
As for what criteria ought to be used to determine whether claims for contribution should be granted, the majority of consultees thought that the test of “just and equitable” contribution should be adopted. This is the same test as found in section 2(1) of the Civil Liability (Contribution) Act 1978, and the LC agreed. Adopting the test in the 1978 Act would minimise the differences between the two types of claim. However, it was felt inappropriate to enshrine this in primary legislation; the better approach would be to leave the principles to develop through case law.
Two modifications of the contribution regime were discussed – contribution claims against non-parties and claims by vicariously liable employers against individual discriminators.
On balance, the LC conclude that contribution claims against non-parties should be permitted; it would be wrong to create the anomalous situation of contribution being available or not depending on the Claimant’s choice of Respondents. To the extent that there is a risk of unmeritorious claims for contribution, the risk will exist in any event where the Claimant has claimed against more than one Respondent.
In relation to claims by vicariously liable employers against individual discriminators, the LC saw the force of the point that employers will only be vicariously liable at all if they have failed to take all reasonable steps to prevent the individual discriminator from discriminating. The LC plump for not excluding such contributions claims entirely, as (i) they cannot rule out the possibility of cases where, despite the employer’s failure to take all reasonable steps to prevent the discrimination, the individual discriminator ought in justice and equity to make some contribution to the employer’s liability, and (ii) individual discriminators should be entitled to claim contribution from employers who have failed to take all reasonable steps to prevent them from discriminating (and may even have encouraged the discrimination). A further anomaly would be created if individual discriminators were entitled to seek contribution from their employers, but not the other way round.
Recommendation 20
“We recommend that Respondents to employment-related discrimination claims should be able to claim contribution from others who are jointly and severally liable with them for the discrimination. The test to be applied should mirror that in section 2(1) of the Civil Liability (Contribution) Act 1978.”
ENFORCEMENT
Some consultees felt it anomalous that ETs have no power to enforce their own judgments. If the Respondent does not pay a sum ordered to be paid to an employee or worker, the employee or worker has to register the decision in the County Court.
Despite the range of enforcement possibilities available, it is clear that the enforcement of tribunal awards is not satisfactory. Claimants have to complete a new set of paperwork and pay additional fees. There are also decisions to be made about what form of enforcement is most appropriate. These difficulties are exacerbated by the fact that Claimants have to engage with a new institution. All of this is particularly resented because it would not be necessary if employers simply paid sums due on receipt of the judgment. In addition, there is the overarching problem of the low rate of enforcement of orders.
The LC were not, however, persuaded that giving enforcement powers to ETs would alleviate these problems. Quite apart from anything else, conferring enforcement powers would require significant additional training for ET judges and members. It would also increase the burden on ETs at a time when they are already struggling with the volume of their case load.
The LC are nevertheless convinced that more could be done to streamline the interface between ETs and the County Court’s enforcement mechanisms, and so did suggest some changes.
Recommendation 21
“We recommend that the Government should investigate the possibility of:
(1) creating a fast track for enforcement which allows the Claimant to remain within the ET structure when seeking enforcement; and
(2) extending the BEIS employment tribunal penalty scheme so that it is triggered automatically by the issuing of a tribunal award.
We recommend that consideration be given to:
(1) sending a notice with the judgment to inform an employer that if it does not pay the award by a set date, it will be subject to a financial penalty;
(2) sending a copy of the judgment to the BEIS enforcement team; and
(3) improving the information sent to successful Claimants on how to enforce awards.”
Chapter 9: The EAT’s jurisdiction
There were no changes / recommendations proposed here.
Chapter 10: An employment and equalities list?
The LC consultation paper noted the recommendation made to the Civil Courts Structure Review that a new “Employment and Equalities Court” be created with non-exclusive but unlimited jurisdiction in employment and discrimination cases, including claims of discrimination in the supply of goods and services. The establishment of a new court would require significant primary legislation and the LC did not view it as a practicable proposal at present. It therefore considered what other measures might be available to ensure that cases concerning employment and / or discrimination law in the High Court are heard by judges with relevant specialist experience.
The LC provisional view in the consultation paper was that an informal specialist “employment” or “employment and equalities” list should be established within the Queen’s Bench Division.
The majority (70%) of consultees supported this. A formal statutory allocation of jurisdiction or list risks being overly rigid and raises problems of definition, with some consultees highlighting the importance of flexibility, particularly in relation to applications for injunctions. It was widely considered that an informal list would provide sufficient flexibility and has proven successful in other contexts.
Where discrimination and employment-related claims and appeals come before a judge in the High Court, as is currently the case, it is desirable that, where possible, the judge has relevant expertise and experience. An informal list could be an effective mechanism to facilitate the assignment of specialist judges to appropriate cases. The deployment of specialist judges in the High Court would complement and supplement the flexible deployment of suitably qualified employment judges to hear non-employment discrimination claims in the County Court, as previously recommended. All EAT judges who are High Court or section 9 judges should sit on the list.
As regards the types of matter to be included in the list, it would not transfer or alter any substantive jurisdiction so as to create any new avenue of appeal or diminish the role of the EAT. “Employment-related claims and appeals” mean only those claims and appeals which can already be brought in the High Court.
Following consultees’ suggestions, the LC conclude that the list should be expanded to include equal pay claims to the extent that they are litigated in the High Court and any claims arising in “employee competition” cases, such as team moves and garden leave. It was not considered appropriate to include applications for judicial review; these involve the application of public law principles and are formally assigned to the Administrative Court; it is left to the judiciary to consider whether to include litigation relating to workplace pensions, which may more appropriately be heard in the Chancery Division.
Recommendation 22
“An informal specialist list should be established to deal with employment and discrimination-related claims and appeals within the Queen’s Bench Division of the High Court.”
Recommendation 23
“The subject matter within the remit of the new List should be:
(1) employees’ claims for wrongful dismissal or other breach of contract where the sum claimed exceeds the limit on tribunals’ jurisdiction under the Extension of Jurisdiction Order;
(2) employees’ equal pay claims;
(3) employers’ claims to enforce covenants in restraint of trade;
(4) employers’ claims for breach of confidence or misuse of trade secrets;
(5) employers’ claims against trade unions for injunctions to prevent industrial action or for damages following what is alleged to be unlawful industrial action;
(6) claims arising in “employee competition” cases such as team moves and garden leave;
(7) appeals from the County Court in claims for discrimination in goods and services; and
(8) appeals from the County Court in employment-related cases.”
The LC view is that the “Employment and Equalities List” is the best name for the list: it is important the name reflects the scope of the list and makes it clear that the list includes both employment matters and also non-employment discrimination and other equality law matters (many cases have both aspects).
So, while there are of course no guarantees about these recommendations becoming law, the Report is based on very detailed research and consultation and, if that is anything to go by, a distinctive - and some would say timely - change will surely come….