The party manifestos for the general election contain a wide range of proposals that could directly affect the operation of employment tribunals and the enforcement of employment rights. What should employers expect?
Labour – extending the time limit for tribunal claims
Currently most tribunal claims have to be be initiated via the ACAS conciliation process within three months of the relevant complaint – six months for equal pay and statutory redundancy payment claims. Time limits are strict but can be extended in certain circumstances, with different tests applying to different pieces of legislation.
The current Labour proposal, set out in its Plan to make work pay document (‘Plan’), is to extend the time limit for all claims to six months. The Plan suggests that this will allow more time for resolution of a dispute, which is theoretically true. But in practice employers often do not become aware for some months that a claim has been brought against them, by which time valuable negotiation time – and evidence – may have been lost. If this measure is to be effective the current system may need to be adjusted to ensure that employers are told about claims at an earlier stage.
The impact of extending the time limit is hard to predict. It might increase the number of claims brought, which would put additional pressure on an already stretched system. On the other hand, extending the time limit could see some claims settling more quickly as employees will have more time to find alternative work before deciding to embark on a claim. Where an individual’s losses are limited because they have found new work a claim is often easier to settle. Longer time limits might also reduce the amount of satellite litigation about whether claims are in time or not.
Conservatives – possible reintroduction of fees
In the last parliament the Conservative government were considering whether to reintroduce employment tribunal fees. The previous fee scheme, introduced in 2013, was found by the Supreme Court in 2017 to be an unlawful impediment to access to justice and was quashed, with the level of the fees playing a part in that decision. Should the Conservatives be returned to government there is a possibility that they may introduce fees at a much lower level. The figures involved would make an extremely modest contribution to the running of the employment tribunal system, leading some commentators to question the rationale for the proposal. It is often suggested that fees reduce the chance of so called ‘unmeritorious’ claims, but in practice it is often the poorest or most disadvantaged claimants (some of whom may have low value but perfectly legitimate claims) who are mostly likely to be put off by having to pay a fee, whilst persistent or unreasonable claimants are very hard to deter. Improvements in tribunals being able to sift claims to identify the potentially unmeritorious arguments would likely provide greater assistance than a fee regime without limiting access to justice for vulnerable claimants. Any fee regime could also be subject to legal challenge on the basis that the cost of establishing it would be likely to exceed the revenue generated.
Liberal Democrats and Greens – funding for the enforcement of employment rights
The Liberal Democrat manifesto proposes to establish a new right to affordable, reasonable legal assistance, and make the Legal Aid system simpler, fairer and more generous. Whilst this does not refer to advice on employment disputes specifically, the Liberal Democrats have previously indicated they would like to see the return of the availability of legal aid in employment disputes.
The Green Party manifesto proposes the proper funding for the enforcement or workers’ rights. It is not clear if this means funding for individuals, more funding for tribunals or more funding for enforcement bodies.
Access to legal advice for claimants could make a significant contribution to the running of the tribunal system, allowing claims to progress more smoothly and with less cost to employers, and assisting in reaching settlements, particularly where claimants have unrealistic expectations of the value of their claims. Equally, more funding for the employment tribunal system would be welcome. These are not however legal changes as such, but spending promises that may or may not be realistic given other priorities in the short term.
For further information, please contact:
Libby Payne, Partner, Withersworldwide
libby.payne@withersworldwide.com
