Employment Law Hearing Structures Report Electoral Law [2020] EWLC 390 (April 2020)

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Law Commission

Reforming the law

Employment Law Hearing Structures: Report

HC308

Law Com No 390

Law wt/ Commission

Reforming the law

(Law Com No 390)

Employment Law Hearing Structures: Report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act

1965 Ordered by the House of Commons to be printed on 28 April 2020

HC308

© Crown copyright 2020

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence,

visit nationalarchives.gov.uk/doc/open-government-licence/version/3

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at http://www.lawcom.gov.uk/project/employment-law-hearing-structures/.

Any enquiries regarding this publication should be sent to us at

enquiries@lawcommission.gov.uk.

ISBN 978-1-5286-1890-8

CCS0420496670  04/20

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Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office

The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chairman

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The terms of this report were agreed on 16 March 2020.

The text of this report is available on the Law Commission's website at

http://www.lawcom.gov.uk/project/employment-law-hearing-structures/.

Contents

GLOSSARY

CHAPTER 1: INTRODUCTION

Issues under review

Terms of reference

Devolution and territorial extent

The need for further consideration of implications for Scotland

Outline of this report

Impact assessment

Acknowledgements

Project team

CHAPTER 2: THE EXCLUSIVE JURISDICTION OF EMPLOYMENT

TRIBUNALS

The scope of employment tribunals’ exclusive jurisdiction

The time limits for bringing claims

Views in support of the current time limit

Views supportive of a longer time limit

The test for extending time

CHAPTER 3: RESTRICTIONS ON THE JURISDICTION OF EMPLOYMENT

TRIBUNALS - DISCRIMINATION

Non-Employment Discrimination Claims

Concern about limited judicial resources

Concurrent jurisdiction

Flexible deployment of judges (cross-ticketing)

Discussion and recommendation

Concurrent jurisdiction over non-employment discrimination claims

Flexible deployment of employment judges in the county court

The property chamber pilot and “concurrent sitting”

CHAPTER 4: RESTRICTIONS ON THE JURISDICTION OF EMPLOYMENT

TRIBUNALS: THE EXTENSION OF JURISDICTION ORDER 1994

Overview of the tribunals’ limited contractual jurisdiction

Temporal and financial restrictions

Substantive restrictions on employment tribunals’ contractual jurisdiction under the Extension of Jurisdiction Order

Claims that a defendant has induced a breach of contract by the

employer

Restrictions on tribunal claims by employers against employees

Original claims by employers

Counterclaims

CHAPTER 5: OTHER RESTRICTIONS ON THE JURISDICTION OF

EMPLOYMENT TRIBUNALS

Written statements of particulars - no power to construe

Unauthorised deductions from wages claims

Excepted deductions

No setting off

Other areas of exclusive civil jurisdiction

Personal injuries

Employers’ references

CHAPTER 6: CONCURRENT JURISDICTION OVER CLAIMS FOR EQUAL

PAY AND EQUALITY OF TERMS

Equal pay

Views in support of transferring exclusive jurisdiction over equal pay

claims to employment tribunals

The non-discrimination rule in occupational pension schemes

CHAPTER 7: CONCURRENT JURISDICTION OVER OTHER

EMPLOYMENT LAW CLAIMS

Transfer of Undertakings (TUPE Regulations)

Working Time Regulations

The national minimum wage

Trade union blacklists

Qualifications bodies

Police misconduct panels

CHAPTER 8: RESTRICTIONS ON ORDERS WHICH MAY BE MADE IN

EMPLOYMENT TRIBUNALS

Injunctions

Contribution and apportionment in discrimination claims

Employment tribunals’ previous practice of apportioning liability

Contribution between respondents

Enforcement

CHAPTER 9: THE EMPLOYMENT APPEAL TRIBUNAL’S JURISDICTION 170

Appeals from the Central Arbitration Committee to the Employment

Appeal Tribunal

The Employment Appeal T ribunal’s original jurisdiction

CHAPTER 10: AN EMPLOYMENT AND EQUALITIES LIST?

CHAPTER 11: RECOMMENDATIONS

APPENDIX 1: LIST OF CONSULTEES

Glossary

ACAS - the Advisory, Conciliation and Arbitration Service, an independent body offering conciliation services to parties and prospective parties to employment tribunal claims; it also provides guidance on workplace issues to individuals and employers.

AWR - The Agency Workers Regulations 2010 (SI 2010 No. 93).

BEIS - Department for Business, Energy and Industrial Strategy.

Blacklist Regulations - The Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010 No. 493).

CAC - the Central Arbitration Committee, an independent non-departmental body with responsibilities regarding:

Certification Officer - an official appointed under the Trade Union and Labour Relations (Consolidation) Act 1992 to deal with various issues relating to trade unions, including the certification of their independence.

Civil Courts Structure Review - a review of the structure of the civil courts commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 and led by Lord Justice (now Lord) Briggs.

Civil Procedure Rules - the rules of civil procedure used by the Court of Appeal, High Court and county courts in civil cases in England and Wales.

EAT - the Employment Appeal Tribunal.

Employee - for the purposes of the Employment Rights Act 1996, an individual who has entered into or works (or, where the employment has ceased, worked) under a contract of employment.

Employment judge - a judge appointed to sit in employment tribunals.

ERA - Employment Rights Act 1996.

Extension of Jurisdiction Order - The Employment Tribunals (Extension of Jurisdiction) (England and Wales) Order 1994 (SI 1994 No. 1623).

GEO - the Government Equalities Office, the unit of British government with lead responsibility for gender equality within the UK Government, together with a responsibility to provide advice on all other forms of equality to other UK Government departments.

HMRC - Her Majesty’s Revenue and Customs.

ICE Regulations - The Information and Consultation of Employees Regulations 2004 (SI 2004 No. 3426).

Jurisdiction - a court or tribunal’s power to make legal decisions and judgments. The extent of jurisdiction (ie the cases a court or tribunal can hear) may be limited by, for example, geographic area, causes of action, and the limitation period in which a claim may be brought.

Lay members - for certain types of hearing, members of employment tribunals selected from two panels, one comprising representatives of employers and the other representatives of employees.

Occupational pension scheme - a pension scheme set up by an employer to provide retirement (and often death) benefits and for its employees. Occupational pension schemes are “trust based”, meaning that they have a trustee or trustees who hold the scheme's assets and use them to provide benefits for the members.

“Setting off” - where a defendant brings a debt it is owed by a claimant into account to reduce or extinguish damages it is liable to pay to the claimant.

Statute - a written law passed by a legislative body.

Taylor Review - Good Work: The Taylor Review of Modern Working Practices, July 2017.

TICE Regulations - The Transnational Information and Consultation of Employees Regulations 1999 (SI 1999 No. 3323).

TUPE Regulations - The Transfer of Undertakings, Protection of Employment Regulations 2006 (SI 2006 No. 246).

Worker - section 230(3) of the Employment Rights Act 1996 provides that in that Act this term means an individual working either (a) under a contract of employment, or (b) under a contract for the personal performance of work or services, with certain exceptions. People in the second category are often referred to as Limb (b) workers. In this report we use the term “worker” to refer only to this second category, that is to say a non-employee.

Working Time Regulations - The Working Time Regulations 1998 (SI 1998 No. 1833).

Employment Law Hearing Structures: Report

To the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice

Chapter 1: Introduction

ISSUES UNDER REVIEW

TERMS OF REFERENCE

To review the jurisdictions of the employment tribunal, Employment Appeal Tribunal and the civil courts in employment and discrimination matters and make recommendations for their reform.

To consider in particular issues raised by:

The project will not consider major re-structuring of the employment tribunals system.

DEVOLUTION AND TERRITORIAL EXTENT

We are unaware of any suggestion that control over provisions governing qualification for access to substantive rights, such as time limits for bringing claims and the test to be applied to extend time etc., or provisions relating to compensation limits for breach of those rights, will devolve ... [and] a significant number of the proposals in this consultation paper appear to relate to legislative provisions which, as we understand it, will remain reserved following devolution of functions.

The need for further consideration of implications for Scotland

Some of the issues canvassed by the Law Commission are plainly only directly relevant to [England and Wales (“E & W”)], in particular the organisation of employment business in the High Court and the question whether employment judges should preside over non-employment discrimination cases in the County Court. However even in these and other such areas (such as the question of enforcement of monetary orders, where the system in Scotland is different to that in E & W) have implications for Scotland, and if changes result for E & W there will inevitably be pressure for Scotland to follow ....

OUTLINE OF THIS REPORT

IMPACT ASSESSMENT

ACKNOWLEDGEM ENTS

PROJECT TEAM

Chapter 2: The exclusive jurisdiction of employment tribunals

THE SCOPE OF EMPLOYMENT TRIBUNALS’ EXCLUSIVE JURISDICTION

Consultation Question 1: We provisionally propose that employment tribunals’ exclusive jurisdiction over certain types of statutory employment claims should remain. Do consultees agree?

We would regard it as undesirable to give the County Court or High Court jurisdiction over any of the areas of law, such as unfair dismissal, employment discrimination and redundancy rights, in respect of which the employment tribunals have built up, over many years, a considerable body of expertise, and in the determination of which they generally command the respect of both employer and employee/worker litigants and their respective representatives. We consider that any change reducing the exclusivity of the employment tribunals’ jurisdiction would be a retrograde step.

Discussion

THE TIME LIMITS FOR BRINGING CLAIMS

Consultation Question 2: Should there be any extension of the primary time limit for making a complaint to employment tribunals, either generally or in specific types of case? If so, should the amended time limit be six months or some other period?

Should there be any increase of the primary time limit for making a complaint to employment tribunals?

Views in support of the current time limit

Any time limit, by its very nature is arbitrary. However relatively short time limits in employment requires parties to focus on their dispute and where appropriate, to move on. We consider that this is a legitimate policy objective.

Employers have to be given equal consideration in this matter and it needs to be recognised that the working landscape has changed significantly from when tribunals were first established. The vast majority of UK employers are small to medium enterprises and do not have dedicated HR departments who can address claims that arise. Fading recollections of witnesses impact on the ability of respondents to defend cases, particularly if they are not aware of the nature of a claim that is coming.

Views supportive of a longer time limit

In certain circumstances only?

The short time limit means that women have to consider their options, seek legal advice and take highly stressful action during a very vulnerable period of their life. This is a stressful and emotional time for women; they may be in the later stages of pregnancy or looking after a very young baby. They may be coming to terms with the complexities of new motherhood and will be extremely time poor, exhausted and possibly lacking in confidence .. Therefore, we are forcing women to take on highly stressful tribunals when they are mentally and physically very vulnerable.

We would suggest that unlike other areas of employment law, there is a legitimate and recognisable issue that arises from the nature of the claim that is being made. An individual may be facing particular difficulties at this point in their life and the commencing of litigation may seem like one battle too many when they are juggling so many issues. With a longer time limit, the individual would be able to focus on the merits of their claim rather than have to balance the decision to make a claim against their wellbeing.

For many people, three months will not give them sufficient time to recover, consider what has happened to them, make a decision to pursue the claim, seek legal advice and start the legal process. Employees are also often faced with a choice of allowing the limitation period to expire while they pursue an internal grievance, or issuing a claim before they have exhausted internal procedures.22

Women and Equalities Committee that the time limit be extended to six months for cases of sexual harassment.24

Extending the time limit for all claims

A fact continually seen in practice is that employees are very often reluctant to pursue claims against their employer, or against a recent ex-employer. They will often have perfectly sound reasons for delaying before bringing complaints. They might be reluctant to take legal action which might sour the relationship while it lasts (or a job reference is awaited); they might want to pursue internal grievance or appeal processes, or to focus on looking for a new job; or they might not immediately realise that their claim has any particular value. A very short time limit may push some individuals into precipitous litigation, and act as a barrier to justice for others.

It is somewhat anomalous and anachronistic that the time limit in which an employee must identify, decide upon, formulate and decide to bring their claims is half as long as the time within which the tribunal thereafter aims to start the hearing of their claim.

Three months is not a lot of time in practice, especially when an employee has to absorb the situation, recognise they have been wronged, seek representation (if appropriate), go through early conciliation and begin the process of lodging a potential employment claim, including the associated paperwork.

Our experience of working with often vulnerable clients is that claimants with valid claims take time to make decisions, and it then takes time to assemble a claim. It is therefore typical to be up ‘against the clock’ when preparing employment tribunal claims .. The most compelling case for change is that the short time limit does not pay due regard to the wellbeing of the dismissed employee, for example: struggling to cope with the financial consequences of losing their job, looking for advice and representation, looking for new employment and trying to come to an informed decision about whether to bring a claim and how best to frame it. Unfair outcomes can also result when employees wait until internal procedures or settlement discussions have taken place first, and their claims may then be out of time.

The different limitation periods often cause confusion especially where parties are not legally represented. Genuine mistakes around limitation can result in individuals being barred from seeking justice in their case.

If there is to be any extension of the primary time limit for making a complaint to employment tribunals, should the amended time limit be six months or some other period?

ACAS Early Conciliation

simply too complex to be understood by the lay person. We are aware of cases whereby litigants have had to seek an extension of time arising out of their misinterpretation of the ACAS time limits.

The law linking time limits to ACAS pre-claim conciliation has introduced unwelcome uncertainty into the law, creating unnecessary confusion for claimants and consultees alike. We favour a fixed time limit which is not impacted by ACAS conciliation, with a shorter fixed period within which ACAS conciliation must be commenced.

A six-month time limit would allow sufficient time for early conciliation to take place without the need for any extensions and would be simpler for claimants to understand.

Discussion

Recommendation 1.

Harassment claims and pregnancy and maternity discrimination claims

vulnerable. In these circumstances, a short time limit is not only unrealistic, but may force a woman to choose between pursuing a claim and her own wellbeing. Similarly, in harassment cases, consultees highlighted how it may take time for a victim of harassment to recover from what happened to them and find the courage to make a claim.

ACAS Early Conciliation

THE TEST FOR EXTENDING TIME

Consultation Question 3: In types of claim (such as unfair dismissal) where the time limit can at present only be extended where it was “not reasonably practicable” to bring the complaint in time, should employment tribunals have discretion to extend the time limit where they consider it just and equitable to do so?

Arguments against applying the “just and equitable” test across the board

Certainty

It must be recognised that tribunals were intended to be used by those without any legal training ... . Claimants, particularly unrepresented litigants in person, generally do not understand the just and equitable test ... . Widening the test is likely to increase the number of claimants who do not comply with the time limits as they will believe that their perceived injustice will mean that it will be waived on their account.

Lack of justification for greater discretion outside the discrimination field

The “just and equitable” test is appropriate for discrimination claims as these cases are generally more complex, and they involve the fundamental human right not to be discriminated against so that some discretion on the part of the tribunal is desirable. Claims that are subject to the “not reasonably practicable” test are essentially about industrial relations and dismissal.

The more liberal just and equitable regime is better suited to discrimination claims because there is often (though not necessarily) different issues that occur and escalate over time, with the identification of the discriminatory act and the decision to take action about it not always being straightforward decisions. In contrast, the not reasonably practicable regime provides certainty about events that are most likely to have occurred on a specific date eg the effective date of termination.

Safeguarding limited tribunal time and resources

In many discrimination cases a Tribunal will need to hear all of the evidence available and spend considerable time in hearing a case, before deciding whether time should be extended. That does lead to significant time and cost being spent on cases which ultimately may be dismissed as being out of time. It would be unfortunate if [this were also the case for] unfair dismissal claims ... [which] would create an increase in cases needing to have evidence heard..

Arguments in favour of applying the “just and equitable” test across the board

The tests for reasonable practicability operate in many cases arbitrarily and with little correspondence to the intrinsic merits of the claimant’s position or the balance of prejudice between the parties.

In the case of Consignia (formerly the Post Office) v Sealy45 we see the example of the Post Office successfully arguing that a first-class stamp was no guarantee of next day delivery to defeat Mr Sealy’s claim of unfair dismissal on the technicality.

This is despite the fact the Claimant may have a good reason for missing the time limit, the cogency of the evidence remains unaffected, the employee may have a very good case and the prejudice to the Claimant far outweighs any prejudice suffered by the Respondent, especially in the circumstances where the claim is out of time by a few days or so.

I share the feeling evident from the judgments of Lords Justices Peter Gibson and Judge that, if this appeal must be allowed, it is hard on the employee. She, it seems to me, acted reasonably in not bringing her proceedings until after the offer of her new job was withdrawn. But the test is whether it was reasonably practicable for her do so within the period of three months from her dismissal, and the answer to that question is much more difficult.46

It allows the employment tribunal to take into account, not just the reason why the claim is presented late, but all the other relevant circumstances, such as the balance of prejudice and whether the case can be tried fairly.

It will not cause difficulties for tribunals to apply the “just and equitable” test as they have already been doing so in the context of employment discrimination claims under the Equality Act 2010.47 There is therefore a body of case law on the interpretation of “just and equitable” and the terms are well understood.

We have considered whether changing the test would result in significant unfairness to employers, but the burden would still remain on the claimant to persuade a tribunal that it was just and equitable to extend time and the tribunal will apply all the usual principles in considering that question, including that of prejudice to both parties.

Whilst the employment tribunal has a wider discretion, we would emphasise that it is not a given that late claims will be allowed under this test. In Bexley Community Centre v Robertson,49 the Court of Appeal made it clear that there is no presumption in favour of extending time and that tribunals should not extend time unless they are convinced that it is just and equitable to do so. The burden is on the claimant, and the exercise of discretion to extend time should be the exception, not the rule.

The question whether it is just and equitable to extend time may be better addressed after the merits of the case have been heard, and this is often, in our experience, the approach tribunals adopt ... . In addition there will be cases where it is sufficiently clear that there is no real prejudice to the respondent to balance against the fact of the claim having been presented a few days late; in such cases, respondents may not seek to contest an extension of time, or at least may not seek a preliminary hearing on the point, thereby saving both tribunal time and the expense of an additional hearing.

Discussion

... a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the industrial tribunal to take into account anything which it judges to be relevant.56 57

When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.62

Recommendation 2.

Chapter 3: Restrictions on the Jurisdiction of Employment Tribunals - Discrimination

NON-EMPLOYMENT DISCRIMINATION CLAIMS

It would be possible to give employment tribunal judges more scope to hear disputes over which employment tribunals lack jurisdiction. This could be done by enabling them to sit in the county court, through the practice of flexible deployment or “crossticketing”.64

Concern about limited judicial resources

Consultation Question 4: We provisionally propose that the county court should retain jurisdiction to hear non-employment discrimination claims. Do consultees agree?

Not only [is the county court] best placed to deal with such a variety of claims, but if our courts are to deal effectively with diversity then enabling them to deal with discrimination is vital - and removing such claims to a specialist court sends a message that these claims are difficult and “other”.

Discussion

CONCURRENT JURISDICTION

Consultation Question 5: Should employment tribunals be given concurrent jurisdiction over non-employment discrimination claims?

We recognise that there could be benefits to the employment tribunals having jurisdiction to hear non-employment discrimination claims. Employment judges’ experience in discrimination law mean that some cases may be dealt with more efficiently ....

The employment tribunal jurisdiction also provides certain inherent benefits to litigants: currently no tribunal fees are payable for pursuing a claim; the costs regime in the employment tribunal means that generally no costs are payable in the event of losing the case; and the court system is less formal than, at least, for multi-track claims in the county court.

Concerns about county court judges potentially having less discrimination law experience than employment judges could, however, be reduced through the provision of appropriate training (just as employment judges regularly receive), the use of suitably expert assessors with special skill and experience in relation to the protected characteristic discrimination in issue in the claim, and/or the flexible deployment of employment judges in the county court.

However, allowing non-employment discrimination claims to proceed in the employment tribunals could also lead to other issues. Legal aid is not currently available in employment tribunals, which may mean someone who becomes eligible for legal aid after issuing their claim will find themselves unable to benefit from legal aid. Also, employment tribunals are not able to award an injunction, which might only become relevant to a litigant after they have issued their claim.

As highlighted in our response to question 4, our view is that a more holistic approach should be taken. We consider that further discussion and consultation should be taken in light of the response to this consultation about how complainants in discrimination claims can have access to appropriate advice and can be confident of an affordable, fair, and speedy hearing by skilled adjudicators with knowledge and understanding of equality legislation and the effects of discrimination.

Arguments in favour of concurrent jurisdiction

There are discrimination claims that raise no significant issues of law deriving from other fields where employment tribunals may be better-equipped to resolve them. This might be particularly true of cases concerned with the provision, or nonprovision, of goods/services under the Equality Act 2010, Part 3. We consider it would afford greater flexibility and better use of specialist judges for there to be extensions to the present concurrent jurisdiction of the employment tribunal and county court in non-employment discrimination cases.

The employment tribunals are intended to provide a more user-friendly approach with less risk of a costs award and better suits those claimants who believe that they have a valid claim but could not afford the risks associated with other courts. They are also better suited to litigants in person.

It is our view that employment tribunals should be given concurrent jurisdiction over non-employment discrimination claims. The deliberately distinct characteristics of employment tribunals are of equal relevance for disabled people in non-employment discrimination claims. There appears to be no good reason why, for example, a worker in a business whose employer has failed to provide disability access to their workplace would pursue their complaint in one jurisdiction whilst a customer of the same business would pursue their complaint in another. Concurrent jurisdiction would enable better access to specialist legal advice (many employment specialists do not have specialist knowledge of the Civil Procedure Rules) and would simplify the system.

We would agree with this proposal as a first step towards establishing a single Employment and Equalities Court. This would at least allow judges who are well versed and trained in the area of discrimination to take over the case.

Were the proposal to be pursued however, care would be required to ensure that the benefits of the Tribunal system were made equally applicable to non-employment discrimination matters. In particular, the more flexible procedural rules and the no costs jurisdiction should apply equally to all types of claim. We also believe legal aid should be retained for non-employment discrimination matters, even where they are brought before the Tribunal.

However, in the longer term, we urge further consideration be given to establishing a single court to hear all these matters.

We would welcome this. The experience of this over time would show whether most equalities business should sensibly be allocated to an Employment and Equalities Tribunal/Court in due course.

Arguments against concurrent jurisdiction

Scepticism about the discrimination expertise argument

We note in the consultation document concerns about civil court judges' lack of expertise on discrimination, but importantly our research shows that many Employment Tribunal judges do not have the necessary expertise. Using the sample of disability discrimination cases claimed between 2015-2017 which went to a preliminary hearing or beyond, information on the identity of the judge was available for 755 cases. In total, 167 judges presided in those 755 cases, with the median being four cases per judge. 37 judges had one case, 77 judges had two to five cases, 44 judges had six to ten cases, and nine judges had more than 10 cases. This suggests that most employment judges had low levels of experience with disability discrimination cases. Accordingly, we have proposed that in each employment tribunal region there should be a few designated specialist Employment Judges who deal with disability discrimination cases. This arrangement will allow claimants the chance of having an experienced Judge hear their case.

Employment judges’ expertise is better shared in some other way

We agree that there is merit in judicial officers with expertise in discrimination claims determining non-employment discrimination disputes, however this can be achieved without tribunals being given concurrent jurisdiction.

The fact that some non-employment discrimination cases require knowledge of housing or education law means it would be inappropriate to transfer all Equality Act cases to the employment tribunals69 - notwithstanding that the knowledge of discrimination law of Employment Judges is very much greater than that of Circuit and District Judges. The better solution is to introduce an ability to transfer cases and to assign Employment Judges to hear particular county court cases.

Concerns about concurrent jurisdiction: delay and procedural complexity

Creating parallel jurisdiction in circumstances where there is no jurisdictional overlap will require primary legislation at a time when legislative attention is short. It would also be liable to promote “forum shopping”, unnecessary satellite litigation and confuse lay-users.

Concerns about the strain on judicial resources

An obvious and immediate impact of such a change would be a reduction in the court issue fees which are currently collected when proceedings are issued in the county court. Since the Supreme Court decision in the UNISON litigation, no fees are payable for proceedings pursued in the Employment Tribunals. Therefore, one foreseeable consequence of such a change would be to reduce the fees generated by proceedings which would, by extension, have an impact upon the funding of the court service generally at a time when funding is already stretched.

During 2017/18, the number of claims received by the tribunal system increased significantly. According to figures from the Ministry of Justice 109,698 claims were made in 2017/2018, compared with 88,476 in 2016/17. And the courts’ outstanding employment caseload has significantly increased. It stood at 336,637 on 31 March 2018, up by 23% on the number outstanding the year before (272,032).

[Concurrent jurisdiction would have] a detrimental impact on claimants seeking resolution of their employment law disputes. And it would over burden an already over-stretched system.

We would be concerned about the practicalities of conferring concurrent jurisdiction upon the employment tribunals over non-employment discrimination claims. Claimants, and particularly litigants in person, may well elect to issue in the employment tribunal because of the fees and costs regimes and also because of the expertise of employment judges in matters relating to discrimination. However, this may not take account of the other potential issues in the claim that employment judges may not be so well equipped to deal with.

Given the difference in the fees and costs regime, giving concurrent jurisdiction to the employment tribunals would be likely to significantly increase the number of nonemployment discrimination claims being issued in the tribunals with the attendant difficulties with resource in a system that is already drastically overstretched.

Consultation Question 6: Transfer and referral of cases in the event of concurrent jurisdiction

(First part): If employment tribunals are to have concurrent jurisdiction over nonemployment discrimination claims, should there be power for judges to transfer claims from one jurisdiction to the other?

This would cause further difficulties of an administrative nature. How would the tribunals and courts deal with transferring cases between them given the difference in fees and costs regime?

(Second part): If so, what criteria should be used for deciding whether a case should be transferred (1) from county courts to employment tribunals and/or (2) from employment tribunals to county courts?

Yes, there should be a power to transfer. It should be in general terms like the [provision in] the Equality Act cited in the consultation paper and no further criteria should be adopted: so as to minimise the likelihood that decisions to transfer or not (which are procedural rather than dispositive) become an area for appeals.

Views of the parties

Procedural considerations

when the case can be listed if transferred (it advocated consideration of listing updates from the relevant employment tribunal regional office to avoid undue delay).

(Third part): Should county courts be given the power to refer questions relating to discrimination cases to employment tribunals?

However, we do consider that there is merit in the county courts being given the power to refer questions relating to discrimination cases to employment tribunals. The considerable expertise of employment judges in determining discrimination claims could undoubtedly assist in cases of non-employment discrimination and having the ability to refer discrete questions relating to discrimination seems a sensible way for the tribunals and courts to share this valuable resource.

It may not be easy to refer purely legal questions to employment tribunals without allowing them to consider the evidence and make findings of fact at either a preliminary or a full hearing. However, the employment tribunal can refer to case law decided on similar facts and/or guidance to assist the county court Judge in determining the issues.

Consultation Question 7: If employment tribunals are to have concurrent jurisdiction over non-employment discrimination claims, should a triage system be used to allocate the claim as between the county court or the employment tribunal?

Ultimately, discrimination claims rest on specific facts and those are rarely contained within the original claim and response forms. Most employment tribunals, when considering discrimination claims, organise a preliminary hearing to determine the relevant issues and give any specific orders to ensure that the matters of dispute are fully identified in advance. This can include the provision of a ‘Scott schedule’ that clarifies what the alleged discriminatory acts were, who was supposed to have carried them out, identifying any relevant witnesses and confirming the type of discrimination the act was alleged to be.

This sort of more detailed information would be necessary in order to carry out any useful form of triage. The likelihood is that, to be effective, the triage system would have to be operated by someone with experience of discrimination claims. Given that a significant consideration in extending the jurisdiction to the tribunals is because of the shortage of such experience within the county courts it is unclear how such a triage system could effectively operate without someone able to carry out these initial assessments.

There is a risk that such a triage system may not sufficiently consider the representations of the parties. Any triage system would need to ensure that cases are reviewed in detail in order to determine the most appropriate route. As there is currently a lack of judicial resources it is unlikely that the courts would have the capacity to assist with such an exercise. There would also be a risk that the decision made could be litigated, further complicating the process for the parties.

What form should the triage take?

The matter might be raised in a Defence or a Response; by direct application; and provision should be made for this issue to be addressed in Directions and Listing Questionnaires in the county court or Case Management Agendas in the employment tribunals.

FLEXIBLE DEPLOYMENT OF JUDGES (CROSS-TICKETING)

Consultation Question 8: Do consultees consider that employment judges should be deployed to sit in the county court to hear non-employment discrimination claims?

Flexible deployment of employment judges is already in use

that 26 employment judges (including one from Scotland) have already been authorised to sit in the county court by way of a pilot project. They are at present deployed to sit in the county court on civil matters (but not family matters) as part of a four-year pilot of the deployment provisions of the Crime and Courts Act 2013, which commenced in February 2016. They are sitting “as judges of the county court” for up to 30 days per year, in effect exercising the jurisdiction of a district judge (although not described as such). Some have been asked to case manage and conduct trials of multi-track claims engaging the Equality Act 2010, for example in disability cases.75

The property chamber deployment pilot

Support for flexible deployment

Consideration would need to be given to (a) how procedural hearings would be dealt with to ensure that this was administratively and practically possible and (b) the training required for the employment judges to address the other matters involved in the civil claim. It should be noted that most employment judges come from a specialist background in employment law and may not have a more general background for the handling of other civil court work. We would encourage the Commission to consider proposing that more employment judges become dualticketed as district judges able to sit in the county court.

It is our view that a more appropriate means of achieving expertise in discrimination than concurrent jurisdiction between employment tribunals and county court, if such is considered desirable, would be deploying employment judges to sit in the county court to hear non-employment discrimination claims. This does not, in our view, remove the need for assessors, who can bring practical experience, as do lay members of the employment tribunal, to the case and so there should be provision for sitting with assessors.

This would improve flexibility and better use of this specialist judicial resource; it would also have the benefit of broadening the perspective of employment tribunal judges, assisting in their career development and (we believe) improving morale.

This is an excellent way to utilise the considerable knowledge and experience of employment judges in relation to non-employment discrimination claims, with the benefit of the support of their judicial colleagues in the county court. It will have the benefit of broadening the knowledge of employment judges which should have a positive impact on their own career progression and their work in the employment tribunals. Gaining further experience of sitting in the county court may ultimately render it more feasible to confer concurrent jurisdiction as discussed above.

There is an increasing number of examples of Employment Judges being asked to sit on trials of multi-track cases that engage the Equality Act 2010. The Employment Judges are keen to do this because it fits with their experience in sitting on multi-day discrimination and equal pay cases. This is known to have happened in Birmingham, Bristol, Sheffield and Watford County Courts.

It is submitted that it makes sense to make use of the knowledge and experience of Employment Judges in this way. It is in the public interest. Furthermore, crossticketing is an important means of judicial career development.

This reform would enable HMCTS to ‘move the judge to the work’ rather than ‘moving the work to the judge’, and we note that this idea has been welcomed by county court judges who recognise the experience of employment judges in this area. It would also reduce, although not eliminate, the situation in which a county court judge with little or no experience in discrimination claims is required to hear and determine such cases.

Concerns about the strain on judicial resources

However, we are aware of the stretched resources of the employment tribunals. The priority must be that employment judges sit and provide the resources for the employment tribunal. Additional training for county court judges in discrimination -perhaps including shadowing in the employment tribunal - may assist in ensuring that county court cases are appropriately adjudicated. But employment tribunal Claimants and Respondents should not experience further delays in achieving justice because judges are being allocated to county courts.

A concern with asking employment judges to sit in the county court is that there is a serious shortage of [such judges] at present which is causing significant issues with listing and progressing employment cases. Accordingly, we believe this is only a workable solution if sufficient numbers of employment judges are recruited and trained. Given the particular nature of discrimination claims, employment judges do not sit on discrimination cases immediately upon appointment and additional training is required. This lead-in time should also be borne in mind.

While we recognise the considerable experience employment judges could bring to bear in the county courts in relation to discrimination cases it has to be acknowledged that employment judges are already an extremely restricted and scarce resource. The shortage of judicial resources is a major factor in the significant delays in listing matters in the employment tribunal, particularly on complex cases that would run for multiple days, which would cover the majority of discrimination claims. Reducing the availability of judges to sit on any hearings, and particularly on multi-day hearings, due to diary commitments in the county court would only further exacerbate the listing difficulties within the employment tribunals, increasing the delays on cases.

If we were in a position where the employment tribunal had a surplus of judges so judicial time was under-utilised then deploying judges to sit in the county court would be a good use of judicial resources. However, given the current position this is not advisable given the significant detrimental impact it would have on tribunal listings.

Whilst flexible deployment of Employment Judges may be superficially attractive, it is not clear that such a process would be efficient in using available judicial resources. For example, case management hearings in the county court do not normally last longer than 1 to 2 hours as a maximum. Unless Employment Judges are able to deal with several such cases in the course of one day (which will itself depend on listing), or are able to also deal with other standard county court work for the remainder of any such days, such an approach is likely to be inefficient.

Consultation Question 9: If consultees consider that employment judges should be deployed to sit in the county court, should there be provision for them to sit with one or more assessors where appropriate?

[Cross-ticketed employment judges] should sit with assessors in the same way as required for county court judges. As we set out in our intervention into Cary v Commissioner of the Police for the Metropolis,80 we consider that assessors should have special skill and experience in relation to the protected characteristic discrimination in issue in any claim. This is because discrimination against groups sharing protected characteristics generally manifests itself differently. The majority of assessors are lay employment tribunal members with greater experience in more general employment law and practice. Therefore we consider that, without the requirement we suggest, the additional expertise and skill they may bring to nonemployment discrimination claims being heard by an employment tribunal judge (rather than a county court judge) will be limited.

Regardless of the above, the Equality Act 2010 currently requires that a judge hearing a non-employment discrimination claim will normally have to appoint an assessor, unless there are good reasons for not doing so. The Commission’s ... Statutory Code of Practice states ... that it would not be a good reason that the court believes itself capable of hearing the issues in the case without an assessor or that having an assessor would lengthen proceedings ... .81 Without further primary legislation it is therefore likely that in any event an employment judge sitting in the county court would be required to sit with an assessor.

DISCUSSION AND RECOMMENDATION

Despite the concerns there was a consensus that employment judges, properly deployed, can help deal with non-employment discrimination claims more efficiently. Consultation responses have not deflected us from the provisional views we expressed in our consultation paper83 that most circuit and district judges are generalists who have not had the opportunity to develop the expertise in discrimination law that employment judges have, and that employment judges have developed practices to manage and determine discrimination claims which are not mirrored in the county court.

Concurrent jurisdiction over non-employment discrimination claims

Referral could only work if the issues fell into separate watertight compartments. Even in such a case, the need for determination of different issues in different forums -inevitably on different occasions - would require additional time and resources.87

Flexible deployment of employment judges in the county court

The cross deployment of Employment Judges into the county court to undertake civil cases and the dual authorisation of First-tier Tribunal Property Chamber judges to hear cases concurrently in the Tribunal and in the county court have both been successfully trialled.88

Recommendation 3.

The property chamber pilot and “concurrent sitting”

Having a single jurisdiction able to consider both employment and services discrimination claims could also lead to greater efficiency in certain “employment” cases where a claimant may currently wish to bring an employment tribunal claim and a county court claim (in the alternative) out of the same set of facts. This can occur in a “gig-economy” situation where there is dispute that the claimant is a worker for the purposes of Part 5 of the Equality Act 2010 (“EA2010”) and so the claimant may in the alternative seek to claim that the alleged employer is actually a service provider under Part 3 of the EA2010. Such split-forum claims are currently unusual, although they may become more common in the future ....

As highlighted in our response to Question 4, our view is that a more holistic approach should be taken. We consider that further discussion and consultation should be taken in light of the response to this consultation about how complainants in discrimination claims can have access to appropriate advice and can be confident of an affordable, fair, and speedy hearing by skilled adjudicators with knowledge and understanding of equality legislation and the effects of discrimination.

Chapter 4: Restrictions on the jurisdiction of employment tribunals: the Extension of Jurisdiction Order 1994

OVERVIEW OF THE TRIBUNALS’ LIMITED CONTRACTUAL JURISDICTION

TEMPORAL AND FINANCIAL RESTRICTIONS

In our consultation paper we asked first whether the restriction on an employee’s ability to bring proceedings during employment should be removed.

Consultation Question 10: Should employment tribunals have jurisdiction to hear a claim by an employee for damages for breach of contract where the claim arises during the subsistence of the employee’s employment?

Arguments in favour of being able to “stand and sue”

There is no rational basis for the present alternative in light of Agarwal v Cardiff University: tribunals have jurisdiction to interpret contracts of employment in relation to unlawful deduction of wages claims. Tribunals are therefore entrusted with interpreting contracts even ‘during employment’ in so far as the claim is framed as an unlawful deduction of wages claim, and on the present law after employment has ended would be able to deal with it additionally as a breach of contract claim. There is little sense in such an artificial distinction remaining ‘during employment’.

It is our view that extending jurisdiction to employment tribunals to hear claims for breach of contract which arise during the substance of the employee’s employment would simplify the process and increase access to the more informal employment tribunals.

Given that the employment relationship is continuing, the employment tribunal which is generally more straight forward, less formal and familiar to employers is the most appropriate forum to potentially help facilitate the employment relationship in continuing.

Arguments against “standing and suing”

would encourage claimants to seek resolution by way of litigation, as opposed to exhausting internal procedures, which would in turn be damaging to an on-going employment relationship between employee and employer.

The cost implications of pursuing a breach of contract claim where it is only minor, discourages frivolous claims. This would not be the case where minor breaches can be pursued for free. The remedy available from employment tribunals is clear, limited as it is to loss. Damages are not available for claims of breach of contract. Where there is any actual loss this can be pursued under existing legislation without constituting a breach of contract claim.

Additionally, there is no track system, differentiating between small claims and those of higher value at the employment tribunal. Giving the ability to pursue a claim for damages for breach of contract, where they cannot be awarded for other claims, for free with no requirement to identify in advance the amount claimed would bypass the established and effective system in place within the country courts for dealing with contractual disputes.

Opening up the ability to bring claims of this kind is likely to damage the working relationship based on comments and actions in an adversarial setting. The purpose of the grievance procedure is to allow for any disputes that will not break the contract to be resolved within the work place.

The ability to be able to pursue a breach of contract claim in the employment tribunal where the employment contract remains in force is likely to have a severely detrimental effect on effective employment relations, running contrary to the entire principle behind the establishment of the employment tribunals. Claimants would be able to lodge a claim in any instance where they incorrectly believed that a contractual disciplinary or grievance procedure was not being followed or that their rights were being infringed. That would effectively halt that entire process until that claim was resolved and would prevent effective management of the working relationship.

An unintended consequence of such an extension is the potential for undermining claims for discrimination and constructive dismissal. Where the claimant has the ability to bring a claim for a breach of contract during the subsistence of the contract but does not do so it would raise significant questions as to how the events could be considered a series of breaches leading to a final straw at a later date.

Discussion

Recommendation 4.

Consultation Question 11: Should employment tribunals have jurisdiction to hear a claim for damages for breach of contract where the alleged liability arises after employment has been terminated?

Arguments in favour of extending jurisdiction

The employment tribunal has this jurisdiction to consider claims arising or outstanding upon termination and there is no logical reason for this not to extend to claims arising after termination. The employment tribunal has jurisdiction to deal with post-termination discrimination and detriment claims connected with past employment. There is no logical reason why they should not deal with posttermination breach of contract claims either.

Arguments against extending jurisdiction

Discussion

Recommendation 5.

Consultation Question 12: We provisionally propose that the current £25,000 limit on employment tribunals’ contractual jurisdiction should be increased. Do consultees agree?

Consultation Question 13: What (if any) should the financial limit on employment tribunals’ contractual jurisdiction be, and why?

Support for increasing the financial limit

Views on what the financial limit should be

Adjusting the limit to account for inflation

The ramifications of increasing the cap in a no-costs forum

Discussion

Recommendation 6.

Consultation Question 14: If the financial limit on employment tribunals’ contractual jurisdiction is increased, should the same limit apply to counterclaims by the employer as to the original breach of contract claim brought by the employee?

Arguments in favour of applying the same limit

[although] ‘spurious’ counterclaims could be raised if the tribunal’s jurisdiction is extended to cover claims arising during employment ... on balance we think that the tribunal’s existing powers to award costs where such claims are ‘misconceived’ or ‘unreasonable’ is probably sufficient to deal with this issue.

Arguments for different limits for claims by employees and counterclaims by employers

Discussion

Recommendation 7.

Consultation Question 15 (First part): Do consultees agree that the time limit for an employee’s claim for breach of contract under the Extension of Jurisdiction Order should remain aligned with the time limit for unfair dismissal claims?

Arguments in favour of keeping the time limits aligned

Arguments against keeping the tribunal time limits aligned

would welcome greater streamlining between the procedures of the county courts and those of the Tribunal to simplify the system where parallel claims are being sought. Extending the current time restrictions for bringing contractual claims to the employment tribunal, so that it is better aligned with the six-year limit for county courts, seems both sensible and pragmatic.

Discussion

(Second part): Should a different time limit apply to claims that are litigated during the subsistence of an employee’s employment?

A different time limit should not be used during the subsistence of an employee’s employment. It makes sense to align it with the situation of unlawful deduction of wages claims that equally have a short time limit.

One problem that may occur is that where breaches are continuing, there could be a need to reissue proceedings every three months. This is something that currently happens in many claims involving holiday pay or deductions from wages. This is an unnecessary administrative burden, for the parties and the Tribunal Service. It seems to us, on balance, that a compromise is called for and that a longer period would be appropriate for such contract claims. To balance the ethos of tribunals and avoid additional work we suggest a 12-month limitation period to bring claims or within three months of termination of employment, whichever is earlier.

Discussion

Recommendation 8.

SUBSTANTIVE RESTRICTIONS ON EMPLOYMENT TRIBUNALS’ CONTRACTUAL JURISDICTION UNDER THE EXTENSION OF JURISDICTION ORDER

Consultation Question 16: We provisionally propose that employment tribunals’ contractual jurisdiction should not be extended to include claims for damages, or sums due, relating to personal injuries. Do consultees agree?

Seven consultees disagreed with the proposal.115 NASUWT gave balanced arguments for and against, ultimately concluding that the proposal warrants further consideration.

Arguments against extending jurisdiction

The ordinary courts have well developed protocols and procedures for dealing with personal injury claims, which typically involved a narrow area of factual dispute but much argument about compensation (including expert evidence, both medical and otherwise).

We refer to the case of Flatman v London Borough of Southwark119 which concerned an employer’s refusal to pay an allowance from a scheme that related to injuries sustained during the course of work. The Court of Appeal held that this was a claim for damages in respect of personal injuries, and was excluded from a tribunal’s jurisdiction. Commentators have observed that this exclusion is also likely to apply in respect of benefits under long-term disability and permanent health insurance schemes. A recent example occurred in Awan v ICTS UK Limited120 concerning a long-term disability benefit plan. The rationale for such a wide-ranging interpretation seems dubious to us. It was stated in the judgment of the Court of Appeal in Flatman that “such claims typically involve the calling of doctors and psychiatrists as witnesses and raise matters which might be thought to be unsuitable for resolution by an employment tribunal”. However tribunals now regularly deal with such evidence in discrimination claims.

Arguments in favour of extending jurisdiction

If an act of discrimination causes personal injury, employment tribunals have unlimited jurisdiction to compensate a victim. If no discrimination is involved but a breach of an implied term to look after health and safety or a tortious duty of care, employment tribunals have no jurisdiction (for example in a Hatton-v-Sutherland type case). If there may, or may not, be a discrimination element, we have to stay the employment tribunal case until any court case ends. I see no justification for this and have known it work to the detriment of all concerned on more than one occasion.

Discussion

Consultation Question 17: We provisionally propose that the prohibition against employment tribunals hearing claims for contractual breaches relating to living accommodation should be retained. Do consultees agree?

Arguments in favour of extending jurisdiction to hear living accommodation claims

The incidence of claims involving living accommodation connected with employment occurs, generally, in agricultural employment, for peripatetic employees and in pub/club employment. The experience is that the former type of case is brought infrequently, but the latter two are brought quite often.

the cabin crew were not permitted to pursue claims for a living away from home allowance in the employment tribunal but were able to pursue a claim for a food allowance when away from home. This led to the absurdity of having to claim in the civil courts for the loss of the living away allowance but being permitted to claim in the employment tribunal for the non-payment of the food allowance.

The employment tribunal is well-versed in issues that can arise around accommodation. Claims of unfair dismissal and discrimination can engage the tribunal in contractual questions relating to accommodation in deciding appropriate levels of loss in dealing with remedy. Claims of constructive dismissal can involve construction of contracts which have accommodation clauses in deciding whether there has been a fundamental breach of contract. Most accommodation issues in employment situations involve contractual licences rather than tenancies and it is remedy issues which are to the fore in litigation in such cases. The tribunal has to deal with accommodation issues in its jurisdiction under Minimum Wage provisions as to the permitted deductions in such cases.

[First] there is the facility of ADR; secondly, the fees and costs position promotes access to justice; and thirdly, it could avoid unnecessary duplication of litigation.

Provision of living accommodation may be an important part of an employee’s terms of employment, for example for a live-in club steward. Employment tribunals already assess the value of such accommodation where awarding compensation for unfair dismissal. There is no logical reason for excluding such benefits from the employment tribunals’ breach of contract jurisdiction.

The county court is the appropriate forum to resolve issues such as unlawful evictions, possession, or housing matters that require injunctive relief for example.

However, it is artificial to require an employee or employer to initiate separate civil proceedings where there is a clear monetary issue that is connected to the employment and is capable of being resolved. There is nothing inherently complicated in dealing with such issues and they would be within the competence of an Employment Judge. For example, an employer should be entitled to offset the damages arising from a breach of contract claim arising out of employment if they are owed sums in respect of rent for example.

We would suggest that further evidence is obtained on this point and that consideration is given to a limited reform providing the Tribunal with jurisdiction in respect of straightforward monetary points arising out of a contract relating to accommodation.

Arguments against extending jurisdiction to hear living accommodation claims

Claims for possession and the like give rise to specialist issues relating to housing law which employment tribunals are not equipped to deal with. If such a change were to be introduced, it would require a wider consultation, including those who are expert in housing law - which employment judges, mostly, are not.

Discussion

Recommendation 9.

Consultation Question 18: We provisionally propose that the prohibition against employment tribunals hearing breach of contract claims relating to intellectual property rights should be retained. Do consultees agree?

Whilst the employment tribunal has the necessary skills to consider injunctive relief: for example (1) the tribunal can, in effect, create a super injunction in respect of anonymity under the terms of rule 50 Employment Tribunal Rules 2013; and (2) the tribunal has specific powers to grant interim relief (which is akin to an order for specific performance of the employment contract) the existing machinery set up in the High Court to obtain interim injunctions from a Judge, including if necessary, from a Judge on call, and for the enforcement of injunctions by way of committal (to prison) support keeping such matters in the civil courts.

Discussion

Consultation Question 19: We provisionally propose that the prohibition against employment tribunals hearing claims relating to terms imposing obligations of confidence (or confidentiality) should be retained. Do consultees agree?

Arguments against employment tribunals determining claims relating to obligations of confidence

Arguments for tribunals hearing breach of confidence claims

For the sake of avoiding any confusion with regards to NDAs, this should only apply to issues around intellectual property (as they were originally designed) and not as gagging orders for employees who are victims of sexual harassment. As recent high-profile cases have shown, some employers are misusing this tool to allow those perpetrating sexual harassment to escape facing justice ... . We believe that Employment Tribunals are best placed to deal with cases where an NDA is being misused as a gagging order.

Discussion

... to introduce a requirement to be clear on the limits of any confidentiality clause in a written statement of employment particulars. A worker [who] receives a confidentiality clause in a written statement that does not meet this requirement will be entitled to receive additional compensation in an employment tribunal award, if they are successful in their claim.128

Consultation Question 20: We provisionally propose that the prohibition against employment tribunals hearing claims relating to terms which are covenants in restraint of trade should be retained. Do consultees agree?

Restrictive covenants primarily relate to the employment contract and ... any disputes over such covenants are most likely to have arisen because of a cessation of the employment contract. Responsibility for assessing the validity and reasonableness of such covenants and whether they may have been breached should rightfully belong within the jurisdiction of the employment tribunal.

Discussion

Consultation Question 21: We provisionally propose that employment tribunals expressly be given jurisdiction to determine breach of contract claims relating to workers, where such jurisdiction is currently given to tribunals in respect of employees by the Extension of Jurisdiction Order. Do consultees agree?

Arguments in favour of giving the tribunal jurisdiction to determine breach of contract claims relating to workers

The intention of the 1994 Order was - “to avoid the situation where an employee (or for that matter an employer) is forced to use both a tribunal and a court of law to have all his or her claims determined. In simple terms, the purpose of the extension of jurisdiction was to enable an industrial tribunal to deal with both a claim for unfair dismissal (which we take as an obvious example) and a claim for damages for breach of the same contract of employment. Two sets of proceedings are thus avoided”.133

Precisely the same considerations apply to claims brought by individuals as workers who do not qualify as employees. Many claims, of many kinds, are now brought in the employment tribunal by workers. It would be inefficient and anomalous for those workers who do not also qualify as employees to be unable to bring any claims for breach of contract which arise from breach of their (quasi)-employment contracts in the employment tribunal in the same way as employees may.

We strongly support this proposal. Extending jurisdiction in this way to workers simply reflects the variety of working relationships that now exist and ensures access to justice on the part of such workers where a breach of contract claim arises.

Arguments against giving the tribunal jurisdiction

Discussion

Recommendation 10.

Consultation Question 22: If employment tribunals’ jurisdiction to determine breach of contract claims relating to employees is extended in any of the ways we have canvassed in Consultation Questions 10 to 20, should tribunals also have such jurisdiction in relation to workers?

Extending jurisdiction to cover claims during the subsistence of employment may be all the more important for workers given the difficulty in determining whether there is an umbrella contract or discrete periods of obligation and so whether the worker relationship is continuing. Removing the distinction would negate the need to determine that issue for this purpose.

Arguments against

Discussion

Recommendation 11.

Consultation Question 23: We provisionally propose that employment tribunals should not be given jurisdiction to determine breach of contract disputes relating to genuinely self-employed independent contractors. Do consultees agree?

Arguments against extending jurisdiction to the employment tribunal

The distinction between workers/employees on the one hand, and those who are genuinely self-employed on the other, arguably marks the line between disputes of a work-related nature and disputes of an essentially commercial nature, for which the Civil Courts are the more natural forum. This demarcation reflects the scope of the employment tribunal’s jurisdiction in other areas, and we consider it should be maintained.

Extending the right to hear breach of contract claims to the self-employed would not therefore have the benefit intended by the original Extension of Jurisdiction Order, namely to allow one dispute with both statutory and contractual causes of action to be heard in the same forum.

Arguments for extending jurisdiction to the employment tribunal

The issue as to employment status is complex, but not beyond the knowledge of employment judges. The jurisdiction should be restricted to individuals who are working, including via a personal service company, but should not extend, for example to a partnership. A better, bolder approach is needed to provide a number of ways to deal with bogus self-employment.

There needs to be consideration in relation to those cases whereby a so-called selfemployed contractor is claiming that they are in fact a worker or an employee and for example are claiming unlawful deduction of wages in relation to any outstanding wages. If they are unsuccessful in their determination of status and are found to be genuinely self-employed then there needs to be a mechanism where they are open to bring their case within the county court at that point easily which could be by way of a transfer.

Discussion

Claims that a defendant has induced a breach of contract by the employer

liable136 for inducing the breach.137 The Council of Employment Judges made the following observations in a supplementary note:

The case is authority for the proposition that individual directors can be sued in tort at common law for inducing breach of contract if in bad faith they direct breaches of contracts made between their company and employees/workers.

The Employment Tribunal has statutory jurisdiction to consider claims: from employees of breach of contract; and from workers for unpaid holiday pay and for unlawful deduction from wages. (Breach of contract and unlawful deduction from wages claims are subject to limitations and restrictions that are discussed in the Law Commission’s consultation and our response to it). These claims must be brought against the employer.

On the authority of Antuzis such claims may be brought against individual directors of a separate employing entity where the directors were acting in bad faith: in particular, by inducing employees and workers to provide work with no intention of paying them. However, the claims against individuals other than the employing entity would not be capable of being brought in the Employment Tribunal as there is no jurisdiction to hear claims brought against individuals who are the controlling minds of a separate juridical employing body. Indeed, the employees in Antuzis were compelled to institute High Court proceedings.

Claimants may have good reason to wish to pursue the individuals: this would help considerably where the company is or might be insolvent or otherwise there are enforcement issues.

Unless the Employment Tribunal enjoys equivalent jurisdiction to the civil courts to consider such claims then Antuzis will be a reason for bringing all holiday pay, breach of contract and wages claims in the High Court or county court where a claimant also wishes to establish personal liability for a director who arguably has acted in bad faith by procuring a breach of contract and thus has a potential personal liability for inducement. This may be a disadvantage to an employee who ought to have a choice of forum in the pursuit of a Antuzis claim (as is the case in the pursuit of such claims against the employer).

In light of this development, we suggest that the Employment Tribunal should have jurisdiction to determine tort claims brought by workers in respect of matters of pay and breach of contract. (We do not seek to depart from our position upon other kinds of claim as expressed in our response to the consultation upon the issues at Questions 16,18,19 and 20).

There is precedent for a statutory scheme vesting the Employment Tribunal with power to determine tortious claims against individuals other than the employer. The Employment Tribunal is used to dealing with claims brought under the Equality Act 2010 against individuals whom the employee seeks to hold liable for acts of discrimination. Commonly, such claims are brought alongside a claim against the employer (who may have vicarious liability for the acts of the impugned employees). Discrimination in the workplace is a statutory tort. A similar statutory scheme operates under the ERA 1996 where an employee is subjected to detriment by a coworker for making a protected disclosure.

Discussion

RESTRICTIONS ON TRIBUNAL CLAIMS BY EMPLOYERS AGAINST EMPLOYEES

Original claims by employers

Consultation Question 24: We provisionally propose that employment tribunals should continue not to have jurisdiction to hear claims originated by employers against employees and workers. Do consultees agree?

If the cap on breach of contract claims is increased or removed, and if the ability for workers to pursue claims in the employment tribunals is widened, then giving employers the opportunity to pursue such claims in a no costs jurisdiction would help balance the inequity that the system would otherwise create.

Arguments in favour of the current position

The breach of contract claims which employers make against their employees or workers, rare as they are, normally involve allegations of negligence. Such claims are akin to claims of professional negligence for which the civil courts are better set up with procedure rules dealing with expert evidence.

Arguments for giving employment tribunals jurisdiction to hear claims originated by employers

Access to justice and opportunities to resolve disputes between employers and employees should be equal. Not all employers have significantly greater resources than the employee in order to pursue their legitimate claim. An option may be a small employer exemption. There would be a benefit to employees in that the civil costs regime does not apply, the lack of formality would enable the employee to represent themselves.

Discussion

Counterclaims

Consultation Question 25: We provisionally propose that employers should continue not to be able to counterclaim in employment tribunals against employees and workers who have brought purely statutory claims against them. Do consultees agree?

Arguments against employers being able to bring counterclaims to employees’ statutory claims

We believe that if employers can counterclaim then it may be used as a ploy by some of them or their representatives to intimidate employees/workers bringing claims.

Arguments in favour of employers being able to bring such counterclaims

The unreasonableness of this restriction can be best illustrated by a recent event in the news concerning an apparent dispute between a worker and his employer in relation to a building contract at a Travelodge in Liverpool. It is being reported that the worker believes that he is owed £600 in wages by the contractor and in retaliation for not being paid this, he drove a mini-digger through the reception of the building causing significant amount of damage that the employer will have to correct. Under the current provisions, the worker could pursue a statutory unauthorised deduction claim and the cost to the employer of putting right the damage that the worker caused would be disregarded. By allowing respondents to claim breach of contract in relation to statutory claims seeking monetary compensation this will help to encourage employees to take responsibility for their actions and potentially reduce the workload of the tribunals. This would be in keeping with the overriding objective and avoiding the need for claims in multiple jurisdictions.

Discussion

Chapter 5: Other restrictions on the jurisdiction of employment tribunals

WRITTEN STATEMENTS OF PARTICULARS - NO POWER TO CONSTRUE

Consultation Question 26: Should employment tribunals have jurisdiction to interpret or construe terms in contracts of employment in order to exercise their jurisdiction under Part I of the ERA 1996?

Arguments in favour of employment tribunals being able to interpret or construe terms

Industrial Tribunal and Fair Employment Tribunal (Northern Ireland) agrees) observed that “the present position has no logic”; the Employment Appeal Tribunal (“EAT”) judges described it as “anomalous” and the Council of Employment Judges as “difficult to justify”. In the view of Thompsons Solicitors, employment tribunals are “particularly skilled” in addressing employment contracts. Consultees also suggested that litigants in person may not understand the current limitations on the employment tribunal’s powers. As the Employment Lawyers Association (“ELA”) put it:

Those litigants may well not understand the Southern Cross principle and the difference between determining contractual terms as opposed to interpreting or construing them. Allowing employment tribunals to interpret or construe contractual terms removes this rather artificial distinction and gives employees the opportunity to have disputes over terms determined in the low-cost forum set up to resolve employee/employer disputes.

Arguments against employment tribunals being able to interpret or construe terms

Part I requires employers to provide a statement of written particulars of employment, with certain matters mandatorily included, for example the length of notice the employee is obliged to give. Where the employer does not comply with this, the employee may apply for the tribunal to “determine what particulars ought to have been included in a statement”, see s. 11(1). That is a materially different enquiry to the construction of a contract where the court must construe the objective intentions of the parties as expressed or implied in the contract.

Discussion

Even for claimants who are represented, it is frustrating that employment disputes of this nature cannot currently be wholly litigated in the employment tribunal. Is there then a good reason for continuing to limit the employment tribunal’s powers in this way?

Recommendation 12.

UNAUTHORISED DEDUCTIONS FROM WAGES CLAIMS

Consultation Question 27: Should employment tribunals be given the power to hear unauthorised deductions from wages claims which relate to unquantified sums?

The tribunal should have jurisdiction to determine the amount in this situation as it would be possible to adduce expert evidence in support of the parties' respective positions, which the tribunal could consider as it does with other types of claim (such as personal injury arising from discrimination).

Arguments in favour of employment tribunals hearing unauthorised deductions from wages claims relating to unquantified sums

Arguments against employment tribunals hearing unauthorised deductions from wages claims relating to unquantified sums

In our experience in practice when issues of this type arise, they are likely to do so in the context of more complex, higher value claims (for example in relation to disputed bonus payments) where adjudication of the dispute would require the employment tribunal to engage in exercising significant discretion and judgement to arrive at a quantified sum. We are mindful of the original intention of Wages Act claims as reflected in the Court of Appeal in Coors Brewers v Adcock149 namely that this jurisdiction in the employment tribunal is there to deal with “straightforward claims where employees can point to quantifiable loss” and provide “a swift and summary procedure”. We agree with these sentiments and consider that overall it provides an effective way for employees to recover unpaid wages and should not be extended to cover unquantified sums beyond the scope of the existing statutory provisions and case law in a costs free jurisdiction. We are conscious that in our answer to Question 13 we recommended a cap of £100,000 on the jurisdiction on contractual claims. However we have taken into account that claims under the Wages Act and its predecessor the Truck Acts were devised to deal with much more modest claims and also that unquantified claims for deductions have no ceiling. These factors have influenced us to reach the decision we have.

Ultimately, the respondent has the right to know what claim they are defending and is put at significant prejudice when faced with a claim that the claimant is pursuing an unspecified and unlimited sum in a no costs jurisdiction, particularly as wages claims are generally run through the fast track giving little preparation time. If a claimant believes that monies are properly payable then they should be able to quantify those.... For the amounts to be properly payable they must be express within the contract and so capable of quantification.

Discussion

Recommendation 13.

EXCEPTED DEDUCTIONS

Consultation Question 28: Where an employment tribunal finds that one or more of the “excepted deductions” listed in section 14(1) to 14(6) of the Employment Rights Act 1996 applies, should the tribunal also have the power to determine whether the employer deducted the correct amount of money from an employee’s or worker’s wages?

Discussion

Recommendation 14.

NO SETTING OFF

Consultation Question 29: (First part): Should employment tribunals be given the power to apply setting off principles in the context of unauthorised deductions claims?

Arguments in favour of giving tribunals the power to apply setting off principles

As employers may bring a contract counterclaim in response to a worker/employee’s contract claim, such a change would provide consistency. This accords with our general view that consistency of approach should be achieved where appropriate and possible.

[Such a power] may ensure that, sums having been set off by an employer against their liability to an employee, it is more likely than currently that the employee will get the sum due to them.

Arguments against giving tribunals the power to apply setting off principles

A feature of the case of Asif v Key People is the fact that the claimant was an agency worker and the terms were uncertain. Agency workers are particularly vulnerable, as the Director of Labour Market Enforcement pointed out in his [2018/2019] Labour Market Enforcement Strategy.158

Such a power should not be introduced since it would be contrary to the basic philosophy of the deduction from wages legislation which is that all wages due should be paid without set off.

This is not a contractual claim. It is a statutory tort with its history in the Truck Acts. Employers are to be deterred from deducting sums from wages and if allowed to set off might invent spurious debts as a way of avoiding or delaying liability.

The unlawful deductions jurisdiction is an important avenue for employees especially in the context of low value wages complaints, and should be easily accessible bearing in mind that these complaints may often be brought by litigants in person. As above, we would support the tribunal being able to consider the quantum of excepted deductions under section 14.

There is also, at present, provision which prevents an employer recovering sums due from the claimant in any way (including by separate proceedings in other jurisdictions) if they were unlawfully deducted. The provision is a useful deterrent and a set off right might create difficult issues as to what sums due to the employer were or were not encompassed in an earlier deduction.

(Second part): If so: (1) should the jurisdiction to allow a set-off be limited to liquidated claims (ie claims for specific sums of money due)?

The logic of extending the employment tribunal’s breach of contract jurisdiction to unliquidated amounts claimed by an employee should apply to such claims by employers against workers. To do otherwise would be to replace one anomaly with another.

(Third part): (2) should the amount of the set off be limited to extinguishing the employee’s claim?

Discussion

Allowing employers to set off other claims against wages claims would, they argue, undermine the principle underlying the unpaid wages legislation of requiring wages to be paid to employees, and setting out exhaustively the reasons for making deductions from wages.159

II claim; in other words, by bringing a Part II claim a claimant should not be exposed to a cross-claim for an amount exceeding the wages claimed and thus to the risk of a judgment for a payment by the claimant of a net sum of money to the employer.

Recommendation 15.

OTHER AREAS OF EXCLUSIVE CIVIL JURISDICTION

Personal injuries

Consultation Question 30: We provisionally propose that employment tribunals should continue not to have jurisdiction in relation to employers’ statutory health and safety obligations. Do consultees agree?

Employment tribunals are currently the appeal venue for appeals against Health and Safety Executive improvement and prohibition notices. The tribunal exercises expertise in these matters on issues which relate to enforcement. It is of note that appeals from employment tribunal decisions in this jurisdiction are not to the EAT but to the High Court. In exercising this jurisdiction, the Tribunal applies the relevant legislation in light of the factual circumstances. There appears little logical reason to give the Tribunal this function but not to allow it any jurisdiction beyond that. Giving enforcement jurisdiction to the tribunal (excluding criminal prosecutions) would assist in ensuring that such matters are reserved to a specialist forum.

I am aware of employees raising health and safety concerns, ultimately to the Health and Safety Executive - whose advice was that no action could be taken against the employer until an accident or death occurred. It would be sensible to allow the Employment Tribunal system to hear such reports.

Discussion

Consultation Question 31: We provisionally propose that employment tribunals should continue not to have jurisdiction over workplace personal injury negligence claims. Do consultees agree?

Discussion

Employers’ references

Consultation Question 32: We provisionally propose that employment tribunals should retain exclusive jurisdiction over Equality Act discrimination claims which relate to references given or requested in respect of employees and workers and former employees and workers. Do consultees agree?

Consultation Question 33: Do consultees consider that employment tribunals should have any jurisdiction over common law claims (whether in tort or contract) which relate to references given or requested in respect of employees and workers (and former employees and workers)?

Civil courts have experience of discrimination claims; where the Claimant intends to bring an alternative claim of defamation/misrepresentation/malicious falsehood, the claims would be better brought as one claim.

Arguments in favour of extending employment tribunals’ jurisdiction to common law claims relating to references

This is a claim which naturally forms part of the employment tribunals’ considerations on remedy in any case since claimants often contend that an unfair or unreasonable reference has resulted in their inability to obtain new work.

The Tribunal is a more specialist forum with the necessary expertise to analyse a reference. A District Judge is less likely to have direct experience of references beyond their own personal experience. The Judge will probably need to look at the substance of a reference in order to determine whether the wrong has occurred. That is more likely to involve employment rather than civil considerations.

Arguments against extending employment tribunals’ jurisdiction to common law claims relating to references

Discussion

Chapter 6: Concurrent jurisdiction over claims for equal pay and equality of terms

EQUAL PAY

Consultation Question 34: Should employment tribunals and civil courts retain concurrent jurisdiction over equal pay claims?

Views in support of retaining employment tribunals’ and the civil courts’ concurrent jurisdiction over equal pay claims

Importantly, many of the triggers for bringing a claim are not obvious to the claimants themselves, for example promotions, changes in grade and TUPE transfers. This, combined with the fact that there are no limitation extension provisions in equal pay, mean that they are a particularly tricky type of claim.

Views in support of transferring exclusive jurisdiction over equal pay claims to employment tribunals

Equal pay is a highly specialist field in which the employment tribunals have gained vast experience over many years and have heard complex, high-value multiple proceedings, for example in the NHS and local government. This raises the question: why should there be concurrent jurisdiction? It enables claimants to take advantage of the longer time-limit in the civil courts, as happened in Abdulla v

Birmingham City Council, but our experience is that this is very rare, and we ask, is that a sufficient justification?

To take one example, a member reported that whereas the Tribunal rules work on the assumption that a claimant may not be able to identify a comparator at the stage at which proceedings are commenced, the defendant in High Court equal pay proceedings insisted that without identification of a comparator at the outset the claim was inadequately pleaded.

Discussion

Consultation Question 35: Should the time limit for bringing an equal pay claim in employment tribunals be extended so that it achieves parity with the time limit for bringing a claim in the civil courts?

Arguments against increasing the time limit for equal pay claims in employment tribunals to achieve parity with civil courts

be “inherently inconsistent” with the short time limits for other contractual claims heard by employment tribunals (generally three months), such as unlawful deductions of wages and breaches of contract arising or outstanding on termination of employment.

would lead to increased costs without providing a substantial benefit to claimants -as has been observed, the longer a claimant waits before lodging a claim after his/her employment changes, the less s/he will recover due to the limits on backdating payment.

Arguments in favour of increasing the employment tribunal time limit for equal pay claims to achieve parity with the civil courts

Equal pay claims are already anomalous in that they can be brought up to six months after the end of employment, in respect of an unequal contractual term that may have persisted throughout the many years of “the employment”. Employment tribunals are well used to dealing with equal pay claims stretching back over many years so use of the civil court time limit should not place any additional burden upon them or the parties.

Discussion

Consultation Question 36: What other practical changes, if any, are desirable to improve the operation of employment tribunals’ and civil courts’ concurrent equal pay jurisdiction?

The powers of the civil courts under section 128 of the Equality Act 2010

A civil court may decide to refer a question to the employment tribunal under section 128(2)(b) of the Equality Act 2010. The court has the option to stay or sist the proceedings in the meantime. That provision should be replaced with one which by default transfers the whole claim to the employment tribunal and brings the proceedings in the civil court to an end with no expenses awarded to or by either party, which presumption may be rebutted on cause shown. Otherwise, at the end of the employment tribunal procedure (which it is presumed will definitively resolve the question about whether or not the equality clause is engaged and thereafter, if appropriate, issue a judgment dealing with remedy) parties face incurring unnecessary additional expenses - potentially facing a contentious question of liability for those expenses - in order to bring the litigation to an end.

a presumption that equal pay claims will be referred to the employment tribunal unless one party objects, and a rule that, if there is a referral, the parties will bear their own costs in the High Court.

There is still ... a degree of risk that equal pay claims issued in the civil courts will be challenged on the basis that they should have gone through the [employment tribunal] instead.

Flexible deployment of specialist judges

A system whereby equal pay ticketed employment judges could sit to determine such claims in the county court should not in our view be difficult to develop or implement as something along these lines is already happening. It should also be possible to ticket certain High Court judges (for example, those who sit in the EAT) to deal with equal pay claims that may be brought in the High Court.

Equivalent procedural rules

Discretion to extend the limitation period

Discussion

Recommendation 16.

Recommendation 17.

THE NON-DISCRIMINATION RULE IN OCCUPATIONAL PENSION SCHEMES

Consultation Question 37: Should the current allocation of jurisdictions across employment tribunals and the civil courts regarding the non-discrimination rule applying to occupational pension schemes remain unchanged?

Discussion

Chapter 7: Concurrent jurisdiction over other employment law claims

TRANSFER OF UNDERTAKINGS (TUPE REGULATIONS)

Consultation Question 38: The present demarcation of employment tribunals’ and civil courts’ jurisdictions over the TUPE Regulations 2006 should not be changed. Do consultees agree?

Discussion

WORKING TIME REGULATIONS

Consultation Question 39: The present demarcation of employment tribunals’, civil courts’ and criminal courts’ jurisdictions over the Working Time Regulations should not be changed. Do consultees agree?

The rationale for the demarcation, particularly between the employment tribunal and civil courts on one hand and criminal enforcement on the other, is muddled and

complex and for employees (and employers) it is not straightforward which rights are to be enforced in which jurisdiction.

In the case of local authorities, who enforce the rules in retail, offices and gymnasiums, there is also a very low awareness that enforcement is their responsibility. Thus, the TUC has heard a stream of anecdotes about complaints who have correctly contacted their local authority being wrongly directed to the HSE.

Over the last five years there are just nine entries mentioning Working Time [in the HSE Public Register of Notices]. In those circumstances, criminalisation becomes a blunt form of gaining justice. Victims lose their right to bring an individual claim, yet the power of the criminal law is not being utilised either.

The Institute of Employment Rights’ principal concern is that low levels of compensation for working time claims, or even the loss of wages which can result from a successful claim reducing hours, reduces or eliminates the individual incentive to enforce the Working Time Regulations 1998 ... . The inadequacy of employment tribunal enforcement in this area has recently been recognised by the Administrative Court: see R (FBU) v South Yorkshire Fire and Rescue Authority214 (a good example of an area where individual workers have a disincentive to enforce owing to the effects of reduced hours on pay) ....

The Institute of Employment Rights’ basic starting point is that, owing to the limited individual incentives or remedies to enforce working time legislation, the rights and duties should be backed by state enforcement as well as giving rise to individual rights.215

Discussion

Problems with enforcement

The experience of enforcement of these provisions of the [Working Time Regulations] has been of a very light hand indeed ... . 63 improvement notices were issued by the HSE in the first five years of the [Working Time Regulations], but by 2007/08 the annual total had fallen to three (together with one prosecution but no prohibition notices), and there has since then been only one (unsuccessful) recorded prosecution, and only three improvement notices and one prohibition notice (prior to a change in recording which removed the possibility of identifying numbers of enforcement notices under specific statutory provisions for years after 2013/14). That is not to say that these provisions are not enforced at all; enforcement action often consists of advice and encouragement ... .216

Rationale for demarcation

It seems to me clear that Parliament intended that all contracts of employment should be read so as to provide that an employee should work no more than an average of 48 hours in any week during the reference period. In my judgment this is a mandatory requirement which must apply to all contracts of employment. The fact that regulation 4(1) does not state that an employer is prohibited from requiring his employee from working longer hours does not in my view prevent that paragraph from having the effect of placing an obligation on an employer not to require an employee to work more than the permitted number of hours.218

Recommendation

Recommendation 18.

THE NATIONAL MINIMUM WAGE

Consultation Question 40: Do consultees agree that the present demarcation of employment tribunals’, civil courts’ and criminal courts’ jurisdictions over the NMW should not be changed?

Arguments in support of changing the demarcation of jurisdictions over the NMW

The evidence suggests that state enforcement in its current guise is failing many employees and workers. For example, there is already widespread non-compliance with the NMW ....

The NASUWT is clear that employers who break the law should expect there to be significant consequences for their actions, yet at the same time provide workers with the comfort and knowledge that the system works in a fair and just manner.

The two-year limitation ... introduced without consultation in the wake of the successful holiday pay litigation in Bear Scotland[229], has a very serious detrimental effect on individual claims in the employment tribunal for breach of the NMW. Typically, such claimants will have suffered loss throughout their employment, so they will often have more than two years’ loss. It is in the public interest that the NMW is paid and is fully enforced. The provision produces the curious result that it is often disadvantageous for individuals to bring a claim in the very forum, the employment tribunal, where such claims were intended to be heard.

Two examples from this author’s recent practice are a carer who had not been paid the minimum wage for working “sleep in” duties over several years, and a victim of trafficking whose minimum wage claim went back over 9 years. In our view it is undesirable for litigants of this kind to be pushed into the civil courts, which require payment of an issue fee, and have a costs regime. The employment tribunal system is designed to deal with precisely the kind of issue raised in these cases ... . We consider that the backstop should not apply to unauthorised deductions claims that do not relate to holiday pay.

Arguments against changing the demarcation of jurisdictions over the NMW

This arrangement provides for pro-active enforcement by the enforcement agencies of HMRC and the Gangmasters Licensing Authority alongside direct worker enforcement in the employment tribunals.

Discussion

TRADE UNION BLACKLISTS

Consultation Question 41: We provisionally propose that the present demarcation of employment tribunals’ and civil courts’ jurisdictions over the Blacklists Regulations should not be changed. Do consultees agree?

Time limits should run from the time the claimant discovered (or ought reasonably to have discovered) the act had occurred, with the retention of the just and equitable power to extend time in regulation 10.242

The restrictive criteria for a claim under the Blacklists Regulations, and in particular the increased damages available in the High Court has meant that, to date, claims have tended to be pursued in the High Court (see for example the Construction Industry Vetting Information Group litigation).

One possible model would be to allow the civil court to grant an injunction in support of tribunal proceedings. This is done, for instance, in the context of arbitration proceedings (see Arbitration Act 1996, section 44). That would then allow jurisdiction to be concentrated in the Employment Tribunal.

It is very difficult to assess whether the demarcation is of importance or not because it is unclear whether there have been any successful claims brought under the 2010 Regulations. This is, we consider, largely because of the very limited definition of Blacklists in the Regulations. In reality, this forces claimants to litigate in the civil courts for alternative causes of action, such as defamation, conspiracy and breach of the Data Protection Act.

Discussion

Consultation Question 42: Should the £65,300 cap applying to employment tribunal claims brought under the Blacklists Regulations be increased so that it is the same as the cap on compensatory awards for ordinary unfair dismissal claims, as amended from time to time? Are consultees aware of any cases affected by the £65,300 cap on compensation which have had to be brought in the civil courts?

Arguments in favour of increasing the cap to achieve (at least) parity with ordinary unfair dismissal claims.

Care must be taken not to reduce the cap to the lower of the statutory maximum or 52 weeks’ pay per that applicable to ordinary unfair dismissal. This would be a retrograde step given the serious mischief against which the Blacklists Regulations is directed. Indeed, there is a case for uncapped compensation such is the serious nature of blacklisting for individuals lawfully exercising their Convention Rights to participate in trade union activity.

Arguments in favour of abolishing the cap

Only full compensation, including injury to feelings, is a sufficient deterrent to blacklisting and an adequate measure of compensation for the deep individual and social wrong (by analogy with the approach taken in the Equality Act 2010 and in discrimination law).

The consequences of discrimination by reason of trade union involvement may go beyond loss of one job or job opportunity. If this is seen as being more akin to discrimination than unfair dismissal, then no cap should apply.

This is important as PIDA reflects the fact that some whistleblowers do not work again, and there is an obvious parallel with the blacklisting regulations. In the construction industry for 16 years a blacklist operated in the sector denying many workers from working in the industry (either because they were active trade unionists or had raised health and safety concerns) ... . There are many instances where those on the list either struggled to find work or were left permanently unemployed.

The act of blacklisting will typically involve the commission of other unlawful acts such as defamation and breach of confidence, privacy and data protection rights. For all of these other causes of action, there is no limit on the amount of damages recoverable. The additional remedy of a statement in open court is also available in privacy and defamation cases. If the remedy available in the Employment Tribunal is to be effective and proportionate, then there should be no cap on the amount of damages recoverable.

Discussion

The caps on compensation are set at a high enough level that they are unlikely to restrain compensation in blacklisting cases. Also, the regulations already provide scope for individuals to apply to the courts for damages, where no caps apply.247

Some limits on compensation in existing employment law are re-rated annually to reflect changes in the Retail Prices Index. Whilst it would be desirable to extend this approach to the limits established by the blacklisting regulations, this cannot be achieved because the power in Section 3 of the Employment Relations Act 1999 is insufficient. This means the new limits will be fixed for the foreseeable future.248

Recommendation 19.

QUALIFICATIONS BODIES

Consultation Question 43: Should members of trades or professions who are aggrieved by the decisions of their qualifications bodies be able to challenge such decisions on public law grounds in the High Court and separately be able to claim unlawful discrimination in the employment tribunal? If not, please would consultees explain why and what changes they would make.

Arguments in favour of retaining the dual route of challenging qualifications bodies’ decisions

The concern is that BAME professionals and tradespersons are more harshly treated by their qualifications bodies more widely and this should be challengeable under the Equality Act 2010 within the employment tribunals.

The claimant would not get double recovery of compensation and there is a power to stay one set of proceedings if there is any overlap in compensation or ‘issue estoppel’ may apply. Furthermore, judicial review is a last resort and cannot be pursued where there is an alternative remedy which has not been pursued.

Any concerns about jurisdictional overlap or duplication could be addressed by use of discretionary case management powers to stay employment tribunal proceedings until other proceedings are concluded if that is appropriate, or vice versa, as where there are parallel High Court claims generally.

Concern over claims being pursued simultaneously in two judicial forums

Should it be decided to allow simultaneous claims in more than one jurisdiction, it is our view that whichever ruling is reached first should be binding and the other claim be ruled out under the application of res judicata.

Arguments against the dual route

Consultation Question 44: Should any other changes be made to the jurisdiction of employment tribunals or of the civil courts in respect of alleged discrimination by qualifications bodies?

Discussion

Judicial review, even on the basis of proportionality, cannot partake of the nature of an appeal, in my view. A complaint of discrimination illustrates the point well. The task of any tribunal, charged with examining whether discrimination took place, must be to conduct an open-ended inquiry into that issue. Whether discrimination is in fact found to have occurred must depend on the judgment of the body conducting that inquiry. It cannot be answered by studying the reasons the alleged discriminator acted in the way that she or he did and deciding whether that lay within the range of reasonable responses which a person or body in the position of the alleged discriminator might have had. The latter approach is the classic judicial review investigation.258

Where Parliament has provided for an alternative route of challenge to a decision, either by appeal or through an appeal-like procedure, it makes sense for the appeal procedure to be confined to that statutory route. This avoids the risk of expensive and time-consuming satellite proceedings and provides convenience for appellant and respondent alike.259

POLICE MISCONDUCT PANELS

Consultation Question 45: Should a police officer who is aggrieved by the decision of a police misconduct panel be able to challenge that decision by way of statutory appeal to the Police Appeals Tribunal and separately to complain that the decision is discriminatory in an employment tribunal? If consultees take the view that the answer is “no”, what changes do they suggest?

Arguments in favour of retaining the dual route of challenge

Police officers are entitled to challenge discriminatory decisions of a misconduct panel in the employment tribunal owing to the EU principles of effectiveness and equivalence: see Lord Reed in P v Metropolitan Police.262 As Lord Reed noted (§22), an appeal to the PAT is not a particularly suitable means of addressing discrimination by the misconduct panel.

The PAT is therefore primarily tasked with reviewing the evidence before the misconduct/performance panel below and assessing whether the decision was within a range of reasonable responses. It is not a complete re-hearing ....

The task of deciding a discrimination claim, including hearing often extensive and highly contested evidence and complex legal submissions and deciding sometimes substantial issues of remedy and loss, is quite far removed from the task normally undertaken by a PAT panel.

The employment tribunal has the power to stay a claim pending the outcome of a PAT appeal if it believes there may be an overlap in proceedings or remedy.

It is difficult to see why police officers should not be able to complain to an Employment Tribunal of discriminatory decisions taken by the police misconduct panel thus affording them the same rights to equal treatment as others.

Arguments in favour of limiting the route of challenge to one forum

Discussion

Chapter 8: Restrictions on orders which may be made in employment tribunals

INJUNCTIONS

Consultation Question 46: Our provisional view is that employment tribunals should not be given the power to grant injunctions. Do consultees agree?

Arguments against giving employment tribunals the power to grant injunctions

The existing machinery set up in the High Court to obtain interim injunctions from a judge, including if necessary from a judge on call, and for the enforcement of injunctions by way of committal (to prison) support keeping such matters in the civil courts.

Arguments for giving employment tribunals the power to grant injunctions

Given the inequity in bargaining power and the limited ability of individuals to assert their rights and entitlements against employers, it seems unreasonable that they would need to go through additional layers of legal complexity, including associated costs, in accessing justice.

Breaches of many important provisions in employment law contracts do not cause direct financial losses and therefore cannot give rise to a claim for damages ... . Such provisions are therefore only enforceable by obtaining an injunction.

It is our view that consideration should be given to employment tribunals being given the power to grant injunctions preventing dismissal. An unfair or discriminatory dismissal can have particularly serious consequences for disabled workers due to the impact on their health and additional limitations and barriers to finding suitable alternative employment.

Discussion

CONTRIBUTION AND APPORTIONMENT IN DISCRIMINATION CLAIMS

Employment tribunals’ previous practice of apportioning liability

Consultation Question 47: Should employment tribunals have the power to apportion liability between co-respondents in discrimination cases, so that each is separately liable to the claimant for part of the compensation? If so, on what basis should tribunals apportion liability?

We can envisage circumstances where the ability to apportion liability between corespondents would provide a more just result having regard to the extent of their respective responsibilities for the harm caused to the claimant, and we consider that the option of apportioning liability for indivisible harm should be available to employment tribunals on a just and equitable basis.

The recoverability of employment tribunal awards is an ongoing problem for claimants and too many recover nothing, especially against corporate respondents. The doctrine of joint and several liability ameliorates the effect of that deficiency in the system and we would not wish to see it undermined.

Others noted that joint and several liability played a valuable role in protecting claimants in the event of the insolvency of one of the respondents, most commonly the employer. It was also argued that joint and several liability helps to offset the fact that one-third of employment tribunal awards go unpaid.

CONTRIBUTION BETWEEN RESPONDENTS

Consultation Question 48: We provisionally propose that employment tribunals should be given the power to make orders for contribution between respondents in appropriate circumstances and subject to appropriate criteria. Do consultees agree? If so, we welcome consultees’ views as to appropriate circumstances and criteria.

We agree that where joint or concurrent discriminators are at arm’s length, the situation is indistinguishable from that of tortfeasors at common law, and it is anomalous that in such a case concurrent respondents to unlawful discrimination claims cannot seek a contribution order from one another. Empowering employment tribunals to make contribution orders in such cases would remove that anomaly. The criterion should be what the employment tribunal considers to be just and equitable having regard to the extent of the concurrent discriminator’s liability. This would preserve flexibility and enable employment tribunals to achieve a just result.

We also agree that different issues arise in cases where an employer might wish to seek a contribution against an employee whose conduct has rendered him liable for unlawful discrimination. In addition to the policy issues that arise, the absence of arm’s length dealing and the ability of the employer to run an “all reasonable steps’ defence which, if successful, eliminates liability entirely, are strong arguments for maintaining the no contribution principle in this sort of case.

The criteria as regards to individuals could include:

For corporate respondents the criteria could include:

Discussion

In almost every case it will be unnecessary to make a joint and several award of compensation in a discrimination case. The present practice of apportioning liability (where appropriate) between individual employees and employers works well in practice and does justice to the individual case.272

... in any proceedings for contribution ... the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.

Consultation Question 49: If respondents are given the right to claim contribution from one another in employment tribunals, do consultees consider that this right should precisely mirror the position in common law claims brought in the civil courts, or be modified to suit the employment context? If the latter, we would be grateful to hear consultees’ views on appropriate modifications.

Modifications would be needed to take into account vicarious liability and where the actions of an individual are carried out in the course of their employment but clearly not on the direction of the employer.

then it should be modified to suit the employment context and should certainly consider the extent to which the employer has fulfilled its obligations as to the provision of suitable training, resources, modes or redress and sanctions for breaches of equality policies and procedures.

Discussion

Recommendation 20.

ENFORCEMENT

Consultation Question 50 (First part): Should employment tribunals be given the jurisdiction to enforce their own orders for the payment of money?

Arguments in favour of allowing employment tribunals to enforce their own orders

[A lack of enforcement powers] undermines the integrity of the employment tribunal as it allows respondents to game the system on the chance that a claimant will not be able to pursue further litigation through the civil courts.

In September 2018 the first case in our unpaid wages project went to the employment tribunal and the claimant won his case ... . The claimant was awarded £2,850 for notice pay and holiday pay. The employer refused to pay the award. The claimant had to make a claim in the county court to enforce the employment tribunal award.

Initially he was unable to find pro bono representation for this and faced having to represent himself even though he only speaks limited English. Fortunately, our referral partner, a law centre, was able to advise on using the High Court enforcement process, but this has taken time. The original unlawful deduction took place in January 2018 and the employment tribunal made an award in September 2018 and to date (January 2019) the claimant has still not been paid the money he is owed. After over a year of litigation and further enforcement procedures the claimant has become incredibly frustrated and disillusioned with the process.

Arguments against employment tribunals being able to enforce their own orders

(Second part): If so, what powers should be available to employment tribunals and what would be the advantages of giving those powers to tribunals instead of leaving enforcement to the civil courts?

There are further policy, practical and resource considerations to look at. For example, attaching penal notices to its orders (for example an order to produce evidence on assets), would encroach into the criminal jurisdiction and overly extend the employment tribunal and employment judge’s role. Similarly, provisions enabling a judgment creditor to apply to make the judgment debtor bankrupt where the amount owed is more than £750, may not be appropriate to route through the employment tribunal. The precise range of enforcement powers may therefore need to be subject to further consultation, and would require legislation.

This should certainly include the seizure of goods by High Court Enforcement Officers and possibly charging orders and bankruptcy proceedings. Consideration could be given to ACAS being given a role in this process. The primary advantage would be the simplification and streamlining of the process, which could particularly help disabled workers.

First, there should be an automatic issuing of a penalty notice with a tribunal award, informing the employer that if it does not pay the award by a set date, it will be subject to a financial penalty under sections 37A-Q of the Employment Tribunals Act 1996. Those provisions are insufficiently publicised at present.

Second, where an award is not paid, employment tribunals should have the power (on application by the claimant if necessary) to trigger the current High Court Enforcement Officer process (alternatively the claimant could be informed in the letter sending the judgment of how to activate this process). In accordance with the small sums at stake in employment tribunals, no fees should be payable for activating this procedure. Using the existing High Court Enforcement Officer process would also minimise the extent to which employment tribunals were engaged in areas for which they are not equipped.

Discussion

Recommendation 21.

Chapter 9: The Employment Appeal Tribunal’s jurisdiction

APPEALS FROM THE CENTRAL ARBITRATION COMMITTEE TO THE EMPLOYMENT APPEAL TRIBUNAL

I would also venture to endorse in strong terms what was said by the judge [Elias J] in paragraph 23 of his judgment, that the CAC was intended by Parliament to be a decision-making body in a specialist area, that is not suitable for the intervention of the courts. Judicial review, such as is sought in the present case, is therefore only available if the CAC has either acted irrationally or made an error of law.292

Consultation Question 51: (First part): Should the EAT be given appellate jurisdiction over the CAC’s decisions in respect of trade union recognition and derecognition disputes?

Arguments in favour of giving the EAT appellate jurisdiction over the CAC’s decisions in respect of trade union recognition and derecognition

Expertise of the EAT

Given the issues to be determined by the CAC, whilst accepting its specialist status, it has always been an anomaly that the only right of review in disputes of this type is by way of public law in the form of an application for a judicial review....

The likely subject matter of any initial determination of the CAC in the area of recognition and derecognition relating to issues such as the bargaining unit sits easily within the specialist knowledge of the EAT. In determining matters of law the EAT will be asked to deal with familiar legislation, terminology and practice.

The EAT has expertise in matters relating to collective disputes as it hears appeals relating to collective redundancy consultation, inducements relating to collective bargaining (notably Kostal v Dunkley [2018]), trade union membership and activities .... An Administrative Court judge ... may have no knowledge of the reality or politics of collective bargaining and industrial relations generally as well as recognition disputes.

The cost disadvantage of judicial review

The formal judicial review process is not suited to how the appeals happen in practice. Although the CAC is technically the respondent to the appeal, it has a general policy of not intervening in or appearing at the hearing. This means that the judicial review hearing is run in practice in the same way as an EAT hearing, with the two parties represented rather than the CAC.

Arguments against giving the EAT appellate jurisdiction over the CAC’s decisions in respect of trade union recognition and derecognition

It is the view of the CAC that judicial review is an appropriate safeguard in relation to the CAC misdirecting itself in law and should remain as the sole means of legal challenge.

Expertise of the CAC

Section 260(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 explicitly recognises this and states that the Secretary of State may appoint as members of the CAC only persons experienced in industrial relations ... . The High Court and Court of Appeal have consistently and repeatedly acknowledged the specialist nature of the CAC - a specialist body in a specialist area - and have deferred to it when issues of industrial relations have been raised.

The decisions of the CAC turn on the application of a high degree of specialist experience alongside knowledge of a particular application that will arise through Panel discussions and any hearings.

Uniqueness of the CAC’s functions in relation to trade union recognition and derecognition

Our other jurisdictions with a right of appeal to the EAT are similar to some of the employment tribunal jurisdictions concerning collective rights. It is thus appropriate for those other collective rights to be heard on appeal in the EAT, but not the Schedule A1 decisions. For example, the exercise of gauging likely support for recognition or de-recognition within 10 days after the receipt of the application for recognition or de-recognition, which is a pre-requisite of the application being able to proceed, has no parallel in other areas of employment law and is outside the expertise of the EAT.

Our dual duty both to facilitate agreement between the parties and decide disputes where necessary in recognition cases also marks out our function in recognition and derecognition cases as different, and requires us to engage constructively with both sides during the application process.

No other area of employment law has to act with such speed and deal with a subject matter that is outside the expertise of the Employment Appeal Tribunal.

An application for recognition or de-recognition of a trade union by an employer is a process with a number of stages .... Each decision point is, theoretically, open to challenge ...

Many of the recognition and derecognition provisions are governed by tight statutory deadlines - typically 5 or 10 working days from receipt of information or application.

The specification in Schedule A1 of tight time limits for CAC decisions acknowledges the importance for efficiency and speed in the process to avoid the problems of the precursor legislation in the 1970s.

Importance of adequately deterring tactical and frivolous claims

GMB considered that delays in this context are:

... not neutral and will favour the employer since the consequence is that the unions’ recognition campaign will likely lose momentum as the process is delayed.

Importance of preserving flexibility and informality

... contrary to the tradition of voluntarism that has long surrounded collective bargaining ... and [would] undermine our unique lack of formality, speed and focus on problem solving, that is so highly regarded by both sides of industry.

Suitability of judicial review in this context

consistent with CAC’s role as a specialist body sitting outside the system of domestic tribunals ... [its] experience of industrial relations representing workers/unions and employers respectively, and the nature of its procedures and the decisions which it makes.

(Second part): If such an appellate jurisdiction were created, do consultees agree that it should be limited to appeals on questions of law?

We agree that the appeal should be limited to appeals on questions of law and so mirror the existing and familiar process for appeals from the employment tribunals.

The EAT’s jurisdiction is already limited in this way in relation to appeals from the employment tribunals and in those areas in which decisions of the CAC may already be appealed to the EAT. The CAC should remain the specialist decision-maker in this area.

If the intention is to alter the appeal criteria, more work should be done to explore what an “error or question of law” in the context of the trade union recognition and de-recognition procedure would mean in the EAT, as compared to the Administrative Court, given the considerable body of case law from the High Court and Court of Appeal providing a considerable margin of appreciation to the CAC’s decisions.

If the EAT were to be given appellate jurisdiction ... this should be limited to appeals on points of law given the specialist industrial relations expertise which underpins its decisions. That said, even this limitation would in our view be undesirable given the risk of uncertainty as to whether a challenge was truly one of law.

It is also not clear how a perversity/Wednesbury unreasonableness challenge would then operate. It would be undesirable in terms of certainty and consistency for there to be avenues of challenge to CAC decisions both to the EAT and the Administrative Court depending on whether the challenge was based on error of law or perversity.

Discussion

THE EMPLOYMENT APPEAL TRIBUNAL’S ORIGINAL JURISDICTION

Consultation Question 52: We provisionally propose that there is no need to alter or remove the EAT’s current jurisdiction to hear original applications in certain limited areas. Do consultees agree?

Removal of the EAT’s jurisdiction to hear applications that penalty notices should be issued would presumably mean that financial penalties would be dealt with by the CAC. This would not be appropriate as it would risk making cases at the CAC about financial issues rather than simply industrial relations. This would be counterproductive as the CAC is primarily about finding effective ways for parties to work together in future given the ongoing nature of relationships in labour relations as compared to most Employment Tribunal cases.301

Discussion

Chapter 10: An employment and equalities list?

Consultation Question 53 (First part): We provisionally propose that an informal specialist list to deal with employment-related claims and appeals should be established within the Queen’s Bench Division of the High Court. Do consultees agree?

Arguments in favour of the establishment of an informal list to deal with employment-related claims and appeals

A formal list would bring two unacceptable disadvantages, first it would cause real problems when an urgent injunction was sought and second it would create problems with boundary definitions as to whether the case is within or outside the criteria for the list.

We can see that a formal solution such as a specific division or formal 'specialist list' could give rise to inflexibility and problems of definition, given the breadth of employment-related and discrimination-related claims that can be brought in the High Court. There may sometimes be no clear delineation between an employment claim and other related claims, particularly where a worker providing a service is claiming for unpaid sums and it is arguable whether or not she is an employee or worker, or an independent contractor. It could be problematic to try to draw a clear line in a statutory instrument.

Arguments against the establishment of an informal list to deal with employment-related claims and appeals

Employment-related claims and appeals should be dealt with by specialist judges who sit in the Employment Tribunal and who have the appropriate knowledge, experience and expertise to hear such claims, rather than by judges from an informal specialist list within the Queen’s Bench Division.

We feel that this would blur the boundaries between the different court systems, and create another layer of appeal which in our view is unnecessary. Whilst there are some benefits to having an Employment law specialist on certain claims in the High Court, we would not want to open this up to other claims.

Views expressed by consultees who neither definitively supported or rejected the proposal

Training in the Family Court is organised such that Lady and Lords Justice, High Court Judges, Circuit Judges, District Judges, Recorders and Deputies train together. We would welcome all levels of Employment and Equalities Judges train together: Lady and Lords Justice, EAT Circuit Judges, Employment Judges, salaried and fee paid. Indeed, the Family Court functions impressively as a unit, with Judges at all levels collaborating in projects, for example early neutral evaluation in divorce. This cannot quite be said at present of the Employment and Equalities jurisdiction.

(Second part): If a list is created, what subject matter should come within its remit?

action or for damages following what is alleged to be unlawful industrial action;

... “employee competition” cases, such as team moves, garden leave cases, restrictive covenant cases, breach of contract and confidential information cases in an employment context.

All cases in which the substantive legal rights in question concern an employee or worker (for example employment rights in the Equality Act 2010, Employment Rights Act 1996 or TUPE Regulations to name a few examples) and in which this requires consideration over and above ordinary common law principles of contract and tort whether as a matter of fact or law. The mere fact that a dispute is between an employer and employee ought not to merit inclusion in this list; the substantive dispute is the key.

Given that many key concepts of discrimination law apply equally in the employment sphere and the provision of goods and services, it is strongly preferable that these concepts should be interpreted and applied consistently and with understanding of the impact on the other area of law ... . Equally, legal principles specific to employment contracts and the unequal bargaining strength between employer and employee mean that specialist experience is also advantageous in cases concerning restrictive covenants, confidential information and breach of contract as well as matters involving industrial action.

... less obvious that appeals from goods and services discrimination cases should be covered by the same list. Most employment law cases heard in the High Court are not about discrimination, while there are discrimination cases heard by a range of other High Court judges, in areas such as housing, education and public law.

Discussion

Recommendation 22.

Recommendation 23.

action or for damages following what is alleged to be unlawful industrial action;

Consultation Question 54: What name should it be given: Employment List, Employment and Equalities List or some other name?

Employment and Equalities List

The name should reflect the remit of the list. Assuming this will include discrimination in goods and services, we consider that "Employment and Equalities List" is an appropriate name.

Although the name ‘Employment List’ would probably reflect the vast majority of work undertaken in this area, it may be that if non-employment discrimination appeals are to be included, the name ‘Employment and Equalities List’ would better reflect the broader scope of work potentially included.

Employment List

This makes it clear that the focus is on claims that have arisen from the employment relationship without causing confusion in relation to non-employment related equalities cases.

Other names

... would continue the 'erasure' of the importance of claims made under the Equality Act that are not about employment: they should be treated with due seriousness and given their own weight and importance.

Discussion

Chapter 11: Recommendations

Recommendation 1.

Paragraph 2.58

Recommendation 2.

Paragraph 2.96

Recommendation 3.

Paragraph 3.101

Recommendation 4.

Paragraph 4.18

Recommendation 5.

Paragraph 4.27

Recommendation 6.

Paragraph 4.42

Recommendation 7.

Paragraph 4.48

Recommendation 8.

Paragraph 4.66

Recommendation 9.

Paragraph 4.90

Recommendation 10.

Paragraph 4.113

Recommendation 11.

Paragraph 4.118

Recommendation 12.

Paragraph 5.11

Recommendation 13.

Paragraph 5.25

Recommendation 14.

Paragraph 5.32

Recommendation 15.

Paragraph 5.50

Recommendation 16.

Paragraph 6.56

Recommendation 17.

Paragraph 6.59

Recommendation 18.

Paragraph 7.33

Recommendation 19.

Paragraph 7.80

Recommendation 20.

Paragraph 8.46

Recommendation 21.

We recommend that consideration be given to:

Paragraph 8.78 and 8.79

Recommendation 22.

Paragraph 10.35

Recommendation 23.

or for damages following what is alleged to be unlawful industrial action;

Paragraph 10.36

Appendix 1: List of consultees

Name

Organisation

Sector

Anonymous

Individual

Arnold, James

Outer Temple Chambers

Legal practitioner

Association of Her Majesty's District Judges

Judiciary

Birmingham Law Society

Legal practitioner

British Telecommunications plc

Company

Bunting, John W

Individual

Carlo, Roy

Sugiyama & Co

Legal practitioner

Central Arbitration Committee

Judiciary

Chartered Institute of Legal Executives

Legal practitioner

Chimes, Jo

Individual

Cloisters

Legal practitioner

Council of Employment Judges

Judiciary

Council of Tribunal Members Associations

Judiciary

Countrywide plc

Company

Cribbin, Stephen

Individual

Cudbill, Holly

Blake Morgan LLP

Legal practitioner

Dahill, Hannah

Morgan LaRoche

Legal practitioner

Disability Law Service

NGO

Doyle, Fiona

Harsco

Company

Dunning, Jonathan

UNISON Norfolk County Branch

Trade union

Employment Appeal Tribunal Judges

Judiciary

Name

Organisation

Sector

Employment Law Bar Association

Legal practitioner

Employment Lawyers Association

Legal practitioner

Employment Tribunals (Scotland)

Judiciary

Equality and Human Rights Commission

Public body

Frater, Jason

JF Legal Services Ltd

Legal practitioner

General Council of the Bar of England and Wales (Bar Council)

Legal practitioner

Judge Garnon, Tudor Mansel

Employment Tribunal

Judiciary

Gleave, Mary

Suffolk New College

Academic

GMB

Trade union

Hilsdon, Linda

Individual

Institute of Employment Rights

NGO

JUSTICE

NGO

Law Society of England and Wales

Legal practitioner

Law Society of Scotland

Legal practitioner

LawWorks

NGO

Lewis Silkin LLP

Legal practitioner

Liverpool Employment Tribunals Members Association

Judiciary

Liverpool Law Society Employment Law Committee

Legal practitioner

Manchester Law Society

Legal practitioner

McKillop, Ann

Henderson Group

Company

McWilliams, Mark

Archon Employment Solicitors

Legal practitioner

Membury, Rona

Individual

Meritt, Rebecca

Individual

Name

Organisation

Sector

Moolenschot, Cheryl

Employee Management Ltd

Company

National Association of Schoolmasters Union of Women Teachers

Trade union

National Education Union

Trade union

Judge O'Rourke, Colm

Employment Tribunal

Judiciary

Orpington Constituency Labour Party

Political organisation

Owen, Angharad Ellis

Greene & Greene

Legal practitioner

Peninsula

Company

Perkins, Colin

PSM HR Outsourcing

Company

Pinsent Masons

Legal practitioner

Pregnant then Screwed

NGO

President of Employment Tribunals (England and Wales) and the Regional Employment Judges (joint response)

Judiciary

President of the Industrial Tribunal and Fair Employment Tribunal (Northern Ireland)

Judiciary

Protect

NGO

Purcell, Louise

Whitehead Monckton

Legal practitioner

Judge Purnell, Chris

Employment Tribunal

Judiciary

Judge Rostant, Philip

Employment Tribunal

Judiciary

Shirley, Susan

Susan Shirley HR and Coaching

Individual

Slater and Gordon

Legal practitioner

Judge Sprack, John

Employment Tribunal

Judiciary

Thomas, David

Quay Legal

Legal practitioner

Thompsons Solicitors

Legal practitioner

Tonner, Billy

Individual

Name

Organisation

Sector

Trades Union Congress

Trade union

Transport for London

Public body

Unite

Trade union

Walder, Alice

Kew Law LLP

Legal practitioner

Warnock, Professor Owen

University of East Anglia

Academic

William, Dr Laura; Dr Pauksztat, Dr Birgit; Corby, Professor Susan

Greenwich University

Academic

CCS0420496670

978-1-5286-1890-8

1

Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239.

2

Judiciary of England and Wales, Civil Courts Structure Review: Interim Report by Lord Justice Briggs, December 2015, available online at https://www.judiciary.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf (last visited 9 January 2020) at para 3.61. See also Judiciary of England and Wales, Civil Courts Structure Review: Final Report, July 2016, available online at https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf (last visited 9 January 2020).

3

Judiciary of England and Wales, Civil Courts Structure Review: Interim Report by Lord Justice Briggs, December 2015, available online at https://www.judiciary.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf (last visited 9 January 2020) at para 3.62.

4

Government of Wales Act 2006, sch 7A, pt 1, para 9.

5

Scotland Act 1998, sch 5, pt III, para 2A; Scotland Act 2016, s 39.

The Smith Commission, “Report of the Smith Commission for further devolution of powers to the Scottish Parliament” (27 November 2014), available at

6

https://webarchive.nationalarchives.gov.uk/20151202171029/http://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf (last visited 17 February 2020), para 63.

7

Scotland Act 1998, sch 5, pt II, para H1.

8

The Council’s response included an appendix written by its Scottish Sub-committee.

9

For reserved matters, see Scotland Act 1998, sch 5, pt I, Head H, para H1. For devolved matters, see Scotland Act 1998, sch 5, pt III, para 2A.

10

  These were: extension of time limits for claims (e.g. of unfair dismissal) to six months; changing the test for extending time for late claims from ‘not reasonably practicable’ to ‘just and equitable’; giving tribunals jurisdiction in contract claims arising whilst the employee is still in employment; increasing or removing the £25,000 limit on tribunals’ contractual jurisdiction; extension of tribunals’ contractual jurisdiction to workers; conferring jurisdiction to construe contracts in claims under si 1 Employment Rights Act 1996 (“ERA”); conferring jurisdiction to hear claims for unquantified amounts under Part II of the ERA; and giving tribunals power to enforce monetary awards.

11

  Employment Tribunals (Scotland). In a joint letter from the President of Employment Tribunals (Scotland) and the President of Employment Tribunals (England and Wales), following sight of a draft of this report, the Presidents emphasised the close alignment between the two systems and the importance of retaining it, adding that “we co-operate closely on a range of matters, not least because we are conscious that many of our system users operate on a cross-border basis. Changes made in England and Wales almost inevitably impact on the Scottish jurisdiction and vice-versa”. They expected employment judges on both sides of the border to be very supportive of the Commission’s recommendations. We hope that, if the recommendations in this report are accepted, it will be possible to implement them simultaneously in England, Wales and Scotland.

12

  See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, ch 2. Other types of claim include maternity and parental rights, flexible working, time off work for study or training, various matters concerning trade union membership and activities, written statements of employment particulars, itemised pay statements, and the Agency Workers Regulations 2010. The consultation paper summarises the relevant law concerning these areas: Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 2.5 to 2.45.

13

  These orders cannot be specifically enforced; failure to comply results in an increased financial award to the claimant. See Employment Rights Act 1996, s 117 and Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 6.22 to 6.25. See also the discussion of employment tribunals’ enforcement powers at paras 8.47 to 8.77 below.

14

  See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 1.3, 2.54 and 2.58.

15

  We discuss the time limits for bringing a claim and the tests for extending time in more detail in the consultation paper: Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 2.46 to 2.53.

16

See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 2.54 to 2.60.

17

The Bar Council was against extending time limits generally, but supported extension in pregnancy and maternity cases.

18

Sexual harassment in the workplace, Report of the Women and Equalities Committee (2017-19) HC 725, para 86, https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf (last visited 9 January 2020).

19

  Estimating the financial costs of pregnancy and maternity-related discrimination and disadvantage, EHRC Research Report 105, p 13, https://www.equalityhumanrights.com/sites/default/files/research-report-105-cost-of-pregnancy-maternity-discrimination.pdf (last visited 1 August 2019).

20

  EHRC, Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of key findings, p 5, https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings (last visited 21 August 2019); Official Statistics, Tribunals and gender recognition certificate statistics quarterly: July to September 2018, Annex C: Employment Tribunal Receipts Tables (September 2018), https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-july-to-september-2018 (last visited 4 November 2019).

21

  See Pregnancy and maternity discrimination, Report of the Women and Equalities Committee (2016-17) HC 90, para 143, https://publications.parliament.uk/pa/cm201617/cmselect/cmwomeq/90/90.pdf (last visited 21 August 2019). EHRC, Pregnancy and maternity discrimination in the workplace: Recommendations for change (March 2016), p 15, https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/our-recommendations-tackle-pregnancy-and-maternity (last visited 9 January 2020).

22

  The EHRC’s response supported extending the time limit for all types of discrimination and harassment claims.

23

  EHRC, Turning the tables: Ending sexual harassment at work (March 2018), p 18, https://www.equalityhumanrights.com/sites/default/files/ending-sexual-harassment-at-work.pdf (last visited 9 January 2020).

24

  Sexual harassment in the workplace, Report of the Women and Equalities Committee (2017-19) HC 725, para 92, https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf (last visited 21 August 2018).

25

  Another consultee suggested that the time limit should not begin until all the pertinent information requested by the claimant has been fully disclosed by the respondent.

26

  Professor Owen Warnock suggested that in pregnancy and maternity cases the time limit should be extended to the later of the normal three months or 52 weeks from the birth of the child. Since a breach of maternity rights may occur after a child is born, the three-month time limit may in some cases be longer than 52 weeks from birth.

27

  ACAS Early Conciliation is considered further at paras 2.44 to 2.49 below.

28

  We summarised its effect on time limits in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 2.52 to 2.53.

29

  The details of Early Conciliation are set out in ss 18A and 18B of the Employment Tribunals Act 1996 (which were inserted by the Enterprise and Regulatory Reform Act 2013) and in the Employment Tribunals (Early Conciliation): Exemptions and Rules of Procedure Regulations SI 2014 No 254.

30

  The rationale being to encourage parties to settle disputes before employment tribunal claims are issued, but ensuring that claimants are not disadvantaged by the amount of time taken out of the relevant limitation period while complying with Early Conciliation. The precise methods of pausing or extending the statutory limitation period are relatively involved. First, the amount of time spent on early conciliation does not count in calculating the date when the statutory time limit expires. The clock stops during Early Conciliation for up to one calendar month, with a provision for an extension of two weeks if ACAS believe that the claim is close to settlement. Secondly, if a prospective claimant leaves it until relatively close to the end of the ordinary time limit before contacting ACAS to start Early Conciliation, then the deadline for issuing a tribunal claim is extended to give the claimant effectively one month from the date when they receive a certificate from ACAS verifying that Early Conciliation has been completed. See Employment Rights Act 1996, s 207B.

31

  The meeting occurred on 7 December 2018.

32

  Rebecca Meritt, Cheryl Moolenschot, Ann McKillop, Hannah Dahill, British Telecommunications plc, Peninsula, Countrywide plc, Employment Judge Chris Purnell.

33

  Cheryl Moolenschot, British Telecommunications plc, Liverpool Law Society Employment Law Committee, Countrywide plc.

34

  Hannah Dahill, British Telecommunications plc.

35

Trade Union and Labour Relations (Consolidation) Act 1992, ss 175(1) and 239(1). Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 2.50. Another example is the time limit for a claim for statutory redundancy pay. This is six months from the date of termination of employment: Employment Rights Act 1996, s 164.

36

  GEO, Consultation on Sexual Harassment in the Workplace: Legal protections under the Equality Act 2010 (11 July 2019), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/816116/T echnical_consultation_-_FINAL.pdf (last visited 5 September 2019).

37

  GEO Consultation above, Consultation Question 13.

38

  GEO Consultation above, Consultation Questions 12 and 14.

39

  GEO Consultation above, para 5.1.

40

See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 2.46 to 2.49 and 2.59.

41

Some consultees argued that discrimination cases warranted different treatment but did not explain why, for example, Peninsula referred to “the added significance of discrimination claims” and Pinsent Masons stated that discrimination cases merit “additional protection”.

42

  For example, Professor Owen Warnock, Transport for London and Birmingham Law Society.

43

  Two of these consultees qualified their support. Suffolk New College stated that the test should be changed “in cases where someone has been hospitalised, unable physically or mentally to pursue the case and/or instigate people acting on their behalf. Employment Judge Philip Rostant would retain the “not reasonably practicable” test for “strictly money claims”.

44

  Beasley v National Grid Electricity Transmissions UKEAT/0626/06 (88 seconds late) and Miller v Community Links Trust Ltd UKEAT/0486/07 (nine seconds).

45

  [2002] IRLR 624.

46

  London Underground v Noel [2000] ICR 109, p 118.

47

  This is under Equality Act 2010, s 123.

48

  See for example, the President of Employment Tribunals (England and Wales) and the Regional Employment Judges who suggested that having two tests “lacks logic and introduces complexity and confusion”.

49

  [2003] EWCA Civ 576, [2003] IRLR 434.

50

  See paras 2.72 to 2.73 above.

51

  [2009] EWCA Civil 1298, [2010] IRLR 327 at [32].

52

  Palmer and Another v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119, CA, by Lord Justice May at p 1141.

53

  Palmer and Another v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119, CA, at p 1141. See the discussion in Harvey on Industrial Relations and Employment Law, loose-leaf 2018, Division PI, 1G(2) paras 192 to 193.

54

  [1999] ICR 1202, p 1209.

55

  See for example, British Coal Corporation v Keeble [1997] 3 WLUK 586, [1997] IRLR 336, EAT.

56

  Hutchison v Westward Television Ltd [1977] IRLR 69, [1977] ICR 279, EAT.

57

  See British Coal Corporation v Keeble [1997] 3 WLUK 586, [1997] IRLR 336, EAT. Affirmed in Mr R Miller and Others v The Ministry of Justice and Others UK EAT/0003/15 (15 March 2016, unreported), at para 10. See the discussion in Harvey on Industrial Relations and Employment Law, loose-leaf 2018, Division PI, 1G(3), para 279.

58

  British Coal Corporation v Keeble [1997] 3 WLUK 586, [1997] IRLR 336, EAT.

59

  Miller and Others v The Ministry of Justice and Others UK EAT/0003/15 (15 March 2016, unreported), by Laing J at para 12.

60

  Virdi v Commissioner of Police of the Metropolis [2007] IRLR 4, EAT, at para 40.

61

  See for example, British Transport Police v Norman UKEAT/0348/14 (2 March 2015, unreported), by Judge Eady QC at para 44. This is also the case under the “not reasonably practicable” test: Porter v Bandridge Ltd [1978] 1 WLR 1145, [1978] IRLR 271, at p 1150.

62

  [2003] EWCA Civ 576, [2003] IRLR 434 at [25].

63

  Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, ch 3.

64

  Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 3.5.

65

  R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] IRLR 911.

66

See https://www.judicialappointments.gov.uk/122-salaried-employment-judge-employment-tribunals-england-and-wales-information-page (last visited 22 January 2020).

67

  The research team also consisted of Dr Birgit Pauksztat and Professor Susan Corby. The research referred to in the response has since been published: L William, B Pauksztat and S Corby, “Justice obtained? How disabled claimants fare at employment tribunals” (2019) 50(4) Industrial Relations Journal 314, p 322. The published figures differ slightly from those in the consultation response; they indicate that 38 judges had one case and 43 judges had six to ten cases.

68

  See Annex C, Employment Tribunal Receipts Tables, at https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2019 (last visited 10 January 2020).

69

The reference to transfers applies equally to concurrent jurisdiction, as Professor Warnock’s answer to Consultation Question 5 referred us to his answer to Question 4, approving our provisional proposal that the county court should retain jurisdiction in relation to non-employment discrimination.

70

Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 3.26 to 3.31.

71

  SI 2013 No 1237.

72

  Employment Tribunals (Constitution and Rules of Procedure) Regulations SI 2013 No 1237, sch 1, r 12(1)(a).

73

  Employment Tribunals (Constitution and Rules of Procedure) Regulations SI 2013 No 1237, r 26(1).

74

  Employment Tribunals (Constitution and Rules of Procedure) Regulations SI 2013 No 1237, r 26(2).

75

  Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 3.37.

76

  See para 295 of the explanatory notes for the Crime and Courts Act 2013. The 2013 Act created the single county court.

77

See Judge Siobhan McGrath, President of the First Tier Tribunal (Property Chamber), Report on Property Chamber Deployment Project for Civil Justice Council Meeting 26 October 2018, paras 10 and 30, https://www.judiciary.uk/wp-content/uploads/2018/11/property-chamber-deployment-project-report-oct2018.pdf (last visited 20 January 2020).

78

Jo Chimes and the Bar Council. Jo Chimes cited recent suggestions that rules and guidance on the use of assessors (and their fees) in discrimination claims is currently unclear, and could and should be clarified: A Qwarnstrom and S Mullings, “Equality Act: access to assessors in the county court”, Legal Action Group, 2019, https://www.lag.org.uk/?id=205940 (last visited 10 January 2020).

79

  Equality Act 2010 s 114(7) provides that “In proceedings in England and Wales on a claim within subsection (1), the power under section 63(1) of the County Courts Act 1984 (appointment of assessors) must be exercised unless the judge is satisfied that there are good reasons for not doing so.” See also CPR 35.15.

80

  [2014] EWCA Civ 987, [2015] ICR 71.

81

  EHRC referred to its Services, Public functions and Associations: Statutory Code of Practice, https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice (last visited 21 October 2019).

82

  See para 3.14 above for a breakdown of the issues covered by Consultation Questions 5 to 9.

83

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 3.10 and 3.35 to 3.39.

84

  R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] IRLR 911.

85

  The Employment Tribunals (Constitution and Rules of Procedure) Regulations SI 2013 No 1237.

86

  The example given in the Explanatory Notes to the Act is as follows: An employer instructs an employee to discriminate against a customer, who sues the employer or employee in the county court. The employee simultaneously makes as claim against the employer in an employment tribunal. The court or tribunal can transfer its proceedings so that all proceedings are dealt with together.

87

See also the discussion of the increased time and costs involved in a referral of an equal pay issue under section 128 of the Equality Act 2010 at paras 6.41 to 6.46 below.

88

  The Modernisation of Tribunals 2018: A Report by the Senior President of Tribunals (December 2018) n 8, p

5, https://www.judiciary.uk/wp-content/uploads/2019/01/Supplementary-SPT-report-Dec-2018_final.pdf (last visited 18 July 2019).

89

  Paras 3.64 and 3.65 above.

90

  Judge Siobhan McGrath, President of the First Tier Tribunal (Property Chamber), Report on Property Chamber Deployment Project for Civil Justice Council Meeting 26 October 2018 Pt 3, para 10.

91

  Civil Justice Council Interim Report of the Working Group on Property Disputes in the Courts and Tribunals, May 2016. The interim report refers generally to calls for a Housing Court as part of the Law Commission’s programme of work on housing law: see also Housing: Proportionate Dispute Settlement (2003) Law Com No 309, paras 5.7 to 5.10.

92

  Judge Siobhan McGrath, President of the First Tier Tribunal (Property Chamber), Report on Property Chamber Deployment Project for Civil Justice Council Meeting 26 October 2018 Pt 4, paras 22 to 25.

93

  Above, Pt 3 para 11.

94

  SI 1994 No 1623.

95

  This restriction does not apply to claims for unpaid or underpaid wages, which may be brought in employment tribunals while the claimant remains employed, as a result of the statutory right not to suffer unauthorised deduction from wages.

96

  Arts 3 and 5 of the 1994 Order.

97

  An employee is a person who works under a contract of employment, whereas the statutory definition of a worker is wider, encompassing both an employee and also an individual who works under a contract to perform services personally for another person who is not a client or customer of a business carried on by the individual (in this report we use the term “worker” to refer to this second category). In contrast, selfemployed independent contractors are in business for themselves providing services to clients. In general, self-employed individuals have no employment rights.

98

  See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.1 to 4.73.

99

  See the full consultation response of the Council of Employment Judges for a review of case law illustrating these anomalies.

100

Sometimes referred to as a “costs-shifting” order.

101

 Rule 76(1)(a) of the Employment Tribunal Rules of Procedure 2013 gives the tribunal the power to award costs where “a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part [of the proceedings]) or the way that the proceedings (or part) have been conducted”.

102

 Under rule 27.14(2)(g) of the Civil Procedure Rules, “the court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except

... such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably”.

103

Employment Tribunals Act 1996, s 3(2)(a).

104

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.17 to 4.30.

105

 Using the Bank of England’s inflation calculator, the figure adjusted for inflation to 2019 is £50,101.14.

106

 The High Court and County Court Jurisdiction Order 1991 determines whether claims are to be issued in the county court or High Court. The Order, as amended by the Civil Procedure (Amendment) Rules 2014, provides that claims of no more that £100,000 (excluding personal injury claims) must be issued in the county court.

107

 This bloc of consultees effectively brings together those who preferred a £100,000 limit or above, and those who thought there should be no limit.

108

 The survey of Employment Tribunal Applications in 2013 concluded the median award for claims in an employment tribunal was £3,000. See Department for Business Innovation and Skills, Findings from the Survey of Employment Tribunal Applications 2013 (June 2014), p 68.

109

 Rule 26.6 of the Civil Procedure Rules. Both employment tribunals and the small claims track are costs-free save in cases of unreasonable behaviour. See para 4.15 above.

110

 See para 4.36 above.

111

 Unless different limits are applied, a suggestion that we reject below.

112

In the second part of the question (discussed below) we asked what time limit is required if the jurisdiction is extended to cover claims brought during employment.

113

Including ELA, which suggested the earlier of 12 months from the date of breach, or three months from termination of employment.

114

See art 7 of the 1994 Order.

115

 These included Employment Judges Philip Rostant and Tudor Mansel Garnon, Jason Frater (JF Legal Services Ltd), Billy Tonner, Linda Hilsdon and Rona Membury.

116

 These are offers to settle a case on particular terms; in the county court and the High Court they are made pursuant to Part 36 of the Civil Procedure Rules.

117

 The High Court and the county court can order the payment of an interim sum on account of damages in a personal injuries case.

118

 Agreements by lawyers to represent a party in litigation on the terms that their fees will only payable if the party succeeds.

119

 [2003] EWCA Civ 1610, [2003] 11 WLUK 292.

120

 UKEAT/0087/18/RN.

121

 This view formed part of Professor Warnock’s response to Consultation Question 31.

122

 S 109 of the Equality Act 2010 provides for the vicarious liability of employers for the discriminatory acts of their employees.

123

 (10 September 2013) UKEAT/0318/13/SM (unreported).

124

At para 8.13 below we recommend that employment tribunals should continue not to have jurisdiction to grant injunctions.

125

 These included the President of Employment Tribunals (England and Wales), the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

126

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.55 to 4.58.

127

 Billy Tonner, the Council of Tribunal Members Association (“CoTMA”) and the National Education Union.

128

 Department for Business, Energy and Industrial Strategy, Confidentiality clauses: Response to the Government consultation on proposals to prevent misuse in situations of workplace harassment or discrimination (July 2019), p 16.

129

 These included the President of Employment Tribunals (England and Wales), the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

130

 These arguments are set out at para 4.95 above and in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.55 to 4.58.

131

See Employment Law Hearing Structures, Law Commission Consultation Paper No 239, paras 1.21 to 1.24 for a more detailed explanation of the senses in which we use the terms “employee” and “worker”. In summary, an employee is a person who works under a contract of employment, whereas the statutory definition of a worker is wider, encompassing both an employee and also an individual who works under a contract to perform services personally for another person who is not a client or customer of a business carried on by the individual. The law regards such individuals as deserving many of the protections that employees have. The term “worker” therefore covers a range of individuals who carry out work for others but are not employees, only excluding those who are self-employed and running their own business.

132

 Employment Law Hearing Structures, Law Commission Consultation Paper No 239, paras 1.21 to 1.24 and paras 4.61 to 4.63. Our references to workers are to those who work under a contract other than a contract of employment (sometimes called “limb b” workers). We consider self-employed persons further below.

133

 Sarker v South Tees Acute Hospital NHS Trust [1997] ICR 673 at [680] to [681] by Keene J, cited with approval by the Court of Appeal in Capek v Lincolnshire County Council [2000] ICR 878 at [882].

134

SI 2019 No 731, pt 3.

135

These included the President of Employment Tribunals (England and Wales), the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

136

 We explain joint and several liability at para 8.14 below.

137

 Inducing a breach of contract is a tort (an actionable civil wrong); a person who is found to have induced another person to breach a contract is liable along with that other person to pay damages for the breach.

138

 See paras 3.105 and 3.106 above.

139

 Under s 110(1) of the Equality Act 2010, an employee or agent can be individually liable for discriminating against the claimant. S 120(1)(a) of the Equality Act 2010 gives the employment tribunal jurisdiction over such claims.

140

 Under s 47B(1A) of the ERA 1996, a worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done by another worker or by an agent of the worker’s employer with the employer's authority on the ground that W has made a protected disclosure. Further, the recent case of Timis v Osipov [2018] EWCA Civ 2321, [2019] ICR 655 established that co-workers can also be directly liable under s 47B for the act of dismissal.

141

Gov.uk, Employment Tribunal - What we do, https://www.gov.uk/government/organisations/employment-tribunal/about (last visited 5 September 2019).

142

They would also be subject to the restrictions upon jurisdiction provided for in the 1994 Order.

143

The provisions of sentencing law on compensation orders will be codified in the Sentencing Bill prepared as part of our Sentencing Code project: see https://services.parliament.uk/bills/2019-21/sentencing.html; the compensation order provisions are at ch 2 of pt 7 (cls 133 to 146). Although the courts are required to consider a compensation order in cases of death, injury, loss or damage, such orders are rarely imposed in cases such as criminal damage: see https://www.gov.uk/government/collections/criminal-justice-statistics for 2019/20.

144

 These issues were considered in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.74 to 4.125.

145

 Southern Cross Healthcare Ltd v Perkins [2010] EWCA Civ 1442, [2011 ] IRLR 247 (CA). For more detail on this decision, see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 4.77.

146

 [2018] EWCA Civ 1434, [2018] 6 WLUK 109. In that case the Court of Appeal held that an employment tribunal does have jurisdiction to construe a contract of employment for the purpose of deciding whether a sum has been improperly withheld from wages. For more discussion, see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.89 to 4.91.

147

 Coors Brewers Ltd v Adcock [2007] EWCA Civ 19, [2007] IRLR 440.

148

 These included the President of Employment Tribunals (England and Wales), the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

149

 [2007] EWCA Civ 19, [2007] IRLR 440.

150

 [2007] EWCA Civ 19, [2007] IRLR 440 and see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.92 to 4.96.

151

 SI 1994 No 1623. See recommendation 6 at para 4.42 above.

152

 See recommendation 6 at para 4.42 above.

153

Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.100 to 4.104.

154

 Ridge v HM Land Registry UKEAT/0485/12 (19 June 2013, unreported).

155

 Harvey on Industrial Relations and Employment Law, loose-leaf 2018, Division BI, 7, I, (3)(f) para 381.03.

156

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.106 to 4.108.

157

 EAT/0264/07 (7 March 2008, unreported) and see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 4.107.

158

 Available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705495/la bour-market-enforcement-strategy-2018-2019-executive-summary.pdf (last visited 6 November 2019).

159

 Discussed under Consultation Question 28 above.

160

 See para 4.146 above.

161

 EAT/0264/07 (7 March 2008, unreported) and see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 5.38 above.

162

 By this we mean that set-off would more or less only apply where the employer could produce an unsatisfied judgment in his or her favour. It would not (normally) apply to a liability that the employer claimed before the tribunal, because our recommended rule about no counterclaims to statutory claims would mean that the employer could not advance a claim unless, exceptionally, the employee brought a contractual claim as well as a Wages Act claim. In that exceptional case, the tribunal should give the equivalent of summary judgment on the Wages Act claim so that it was not held up pending trial of the counterclaim.

163

 See, for instance, the Court of Appeal’s judgment in the joined cases of Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones; Baker Refractories Ltd v Bishop [2002] EWCA Civ 76, [2002] IRLR 263.

164

 Lawton v BOC Transhield Ltd [1987] IRLR 404; Spring v Guardian Assurance [1994] ICR 596 (HL).

165

 These included the President of Employment Tribunals (England and Wales) and the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

166

 See para 4.77 above.

167

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.119 to 4.123.

168

 These included the President of Employment Tribunals (England and Wales) and the Regional Employment Judges, the Council of Employment Judges and the EAT judges.

169

The President was of the view that employment tribunals should have jurisdiction over claims of breach of contract or negligence, but was firmly of the view that they should not have jurisdiction over claims in defamation.

170

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, ch 5.

171

 The legislation governing equal pay (and equality of terms) is found in the Equality Act 2010 pt 5, ch 3 and pt 9, ch 4. We outline the law in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.2 to 5.16.

172

 Equality Act 2010, ss 66 and 67.

173

 For a more detailed description of the demarcation of jurisdictions over equal pay claims, see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.17 to 5.30.

174

 In summary, the six-month period generally runs from the end of the contract containing the equality clause or rule on which the claim is based. Where the employee continues to work for the same employer but the terms of employment change, this can give rise to issues as to (a) whether the contract has been terminated and replaced by a new one, or has merely been varied; and (b) if the contract has been terminated, whether the parties nevertheless remained in a “stable employment relationship”.

175

 In summary, cases of deliberate concealment of facts or of a claimant with a “qualifying incapacity”: Equality Act 2010, ss 129(3) and 130(4) and (7).

176

 Equality Act 2010, s 127(1). Employers and pension scheme trustees or managers can also ask employment tribunals to make declarations as to the rights of the parties in any dispute about the effect of an equality clause or rule: Equality Act 2010, s 127(2) and (3).

177

 See Abdulla v Birmingham City Council [2012] UKSC 47, [2013] IRLR 38.

178

 [2012] UKSC 47, [2013] IRLR 38.

179

 Explanatory Notes accompanying the Equality Act 2010, para 419.

180

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.33 and 5.34.

181

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.35 and 5.37.

182

 See paras 6.41 to 6.46 below.

183

 The Birmingham Law Society and Cloisters, respectively.

184

See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 5.33.

185

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI No 1237, sch 3: the regulations contain special detailed rules of procedure for determining equal value claims made under the Equality Act 2010, s 65(1)(c) and (6).

186

 See paras 6.9 to 6.25 above.

187

 See paras 6.51 to 6.52 below.

188

 See paras 6.3 and 6.15 above.

189

 Equality Act 2010, s 128.

190

Abdulla v Birmingham City Council [2012] UKSC 47, [2013] IRLR 38, at [29]: see para 6.5 above. See also Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 5.20(2).

191

We discuss the “just and equitable” test in ch 2 above.

192

 Abdulla v Birmingham City Council [2012] UKSC 47, [2013] IRLR 38, at [29], and see paras 6.5 and 6.55 above.

193

 See ch 3 above.

194

 Equality Act 2010, s 61.

195

 But note that the non-discrimination rule does not have effect in relation to an occupational pension scheme in so far as the sex equality rule has effect (or would have effect save for the exceptions in pt 2 of sch 7); see Equality Act 2010, s 61(10).

196

 Equality Act 2010, s 120(2) to (6).

197

 Equality Act 2010, s 120(6).

198

 Equality Act 2010, s 122(1) and 122(2).

199

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.50 to 5.58.

200

 Transfer of Undertakings (Protection of Employment) Regulations SI 2006 No 246 (as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations SI 2014 No 16). We consider this area of law in more depth in the consultation paper: see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.50 to 5.57.

201

 The two types are: a transfer of an undertaking, business or part of an undertaking or business as a going concern; and a “service provision change” pursuant to which activities are outsourced by a client to a contractor; reassigned to a new contractor, or taken back in house by the client. See TUPE Regulations, reg 3(1)(a) and (b) respectively.

202

 Employment Rights Act 1996, s 104(4)(e).

203

 TUPE Regulations, regs 11(6) and 12.

204

 TUPE Regulations, regs 15(1), (7), (8) and 16(3).

205

 Marcroft v Heartland (Midlands) Ltd [2011 ] EWCA Civ 428, [2011] IRLR 599 (CA).

206

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.50 to 5.58.

207

 The “stand and sue” issue refers to the question of whether employment tribunals should be able to hear claims brought by an employee for damages for breach of contract where the claim arises during the subsistence of their employment. We discuss this at paras 4.6 to 4.18 above.

208

 See recommendation 4 at para 4.18 above.

209

 SI 1998 No 1833.

210

 Working Time Regulations, regs 4 and 5; 6 and 7; 10, 11 and 12; 13 to 16; and 5A and 6A. For our discussion in the consultation paper, see Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.59 to 5.67.

211

 See Working Time Regulations, regs 30 (employment tribunal claims) and 29(1) (state enforcement).

212

 Barber and Ors v RJB Mining (UK) Ltd [1999] 2 CMLR 833, [1999] IRLR 308.

213

 See Working Time Regulations, regs 30 (employment tribunal jurisdiction) and 10 to 14, 16, 24 to 25, 27 and 27A (rest and statutory annual leave provisions); ERA 1996, s 45A (detriment).

214

 [2018] IRLR 717.

215

 The Institute of Employment Rights also considered that the legislation underpinning the enforcement of working time legislation is more incoherent than the summary in our consultation paper suggests. See their full consultation response for detail: https://www.lawcom.gov.uk/project/employment-law-hearing-structures/.

216

 Harvey on Industrial Relations and Employment Law, loose-leaf 2019, Division CI, 1 K(1) para 230.

217

 Working Time Regulations, Research Paper 98/82, 10 August 1998, House of Commons: https://researchbriefings.files.parliament.uk/documents/RP98-82/RP98-82.pdf, p 19.

218

 Barber and Ors v RJB Mining (UK) Ltd [1999] 2 CMLR 833, [1999] IRLR 308, p 690.

219

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 5.65.

220

 R (FBU) v South Yorkshire Fire and Rescue Authority [2018] IRLR 717.

221

 R (FBU) v South Yorkshire Fire and Rescue Authority [2018] IRLR 717, at [134] and [149].

222

 See recommendation 4 at para 4.18 above.

223

 Setting the maximum weekly working time for workers and young workers.

224

 Setting the maximum length of night work for workers and young workers.

225

 Detailed provisions as to the operation of the National Minimum Wage, and certain exempt categories of worker, are set out in the National Minimum Wage Regulations SI 1999 No 584. See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.68 to 5.78.

226

 Employment Tribunals Extension of Jurisdiction (England and Wales) Order SI 1994 No 1623, discussed in ch 4 above and in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.1 to 4.15.

227

 See, for instance, National Minimum Wage Act 1998, ss 19, 19A, 19D, 19E, 31 and 32.

228

 This subsection limits the jurisdiction of employment tribunals over deductions of wages to deductions made within the two years prior to the complaint. See our discussion of this provision in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 4.81 and 5.72.

229

 Fulton & Ors v Bear Scotland Ltd UKEATS/0010/16/JW. The Employment Appeal Tribunal held that 'nonguaranteed' overtime needs to be included in the calculation of holiday pay.

230

 See by analogy para 6.24 above in relation to equal pay.

231

 Employment Relations Act 1999 (Blacklists) Regulations SI 2010 No 493, reg 3.

232

 Employment Relations Act 1999 (Blacklists) Regulations SI 2010 No 493, regs 5, 6 and 9.

233

 Employment Relations Act 1999 (Blacklists) Regulations SI 2010 No 493, reg 7(1).

234

 Employment Relations Act 1999 (Blacklists) Regulations SI 2010 No 493, reg 8(7).

235

 Blacklists Regulations, reg 11(10).

236

 See Employment Relations Act 1999, s 34.

237

 Blacklists Regulations, reg 13.

238

 Blacklists Regulations, reg 13(3).

239

 Except that the county court limit is £100,000.

240

 Blacklists Regulations, reg 13(5) and (4).

241

 See our discussion of trade union blacklists: Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.80 to 5.88.

242

 This suggestion forms part of the Institute of Employment Rights’ response to Consultation Question 42.

243

 See recommendations 1 and 2 at paras 2.58 and 2.96 above.

244

Blacklists Regulations, reg 13(5).

245

 Unite; GMB; National Education Union; Trades Union Congress.

246

 Unite; GMB; National Education Union; Trades Union Congress.

247

Government Response to the Public Consultation - The Blacklisting of Trade Unionists: Revised Draft Regulations, Department for Business Innovation and Skills (December 2009) URN 09/1546, para 3.79, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/245411/0 9-1536-government-response-blacklisting-trade-unionists-consultation.pdf (last visited 07 April 2020).

248

 Government Response to the Public Consultation - The Blacklisting of Trade Unionists: Revised Draft Regulations, Department for Business Innovation and Skills (December 2009) URN 09/1546, para 3.80, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/245411/0 9-1536-government-response-blacklisting-trade-unionists-consultation.pdf (last visited 07 April 2020).

249

 See Blacklisting in Employment - Update: Incorporating the Government’s Response to the Sixth Report of Session 2013-14, House of Commons Scottish Affairs Committee (19 May 2014) HC 1291, p 8, https://publications.parliament.uk/pa/cm201314/cmselect/cmscotaf/1291/1291.pdf (last visited 07 April 2020).

250

 Hansard (HC), 5 September 2017, vol 628, col 70WH.

251

 See recommendation 6 at para 4.42 above.

252

 Equality Act 2010, s 54.

253

 Equality Act 2010, s 120(7).

254

 Khan v General Medical Council [1996] ICR 1032, [1994] IRLR 646.

255

 Michalak v General Medical Council [2017] UKSC 71, [2018] IRLR 60.

256

 See our discussion in Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.89 to 5.95.

257

 Michalak v General Medical Council [2017] UKSC 71, [2018] IRLR 60.

258

 Michalak v General Medical Council [2017] UKSC 71, [2018] IRLR 60, at [21 ], by Lord Kerr.

259

 Michalak v General Medical Council [2017] UKSC 71, [2018] IRLR 60, at [18].

260

 P v Metropolitan Police Commissioner [2017] UKSC 65, [2018] 1 All ER 1011.

261

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 5.96 to 5.97.

262

 [2018] ICR 560 at [29] to [30].

263

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, ch 6.

264

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 6.2 to 6.7.

265

 Under the Equality Act 2010 s 109, unless the employer has taken all reasonable steps to stop those acts occurring.

266

 If two people (A and B) are jointly and severally liable to pay another person (C) a sum of money, C may claim the whole sum either only from one of them or from both of them. They cannot resist the claim on the grounds that the other should pay instead, but they do have a defence if the other has paid.

267

 See, for instance, Way v Crouch [2005] ICR 1362, [2005] IRLR 603 (EAT).

268

 [2011] ICR 1374, [2011] IRLR 740 (EAT). This case was appealed to the Court of Appeal. By the time it came before the Court of Appeal, the parties agreed that the question of apportionment could not arise, meaning that the Court of Appeal’s decision on this point was based on a concession. But additional weight was given to the EAT’s ruling on this point by the Court of Appeal. At paras 47 onwards, Mummery LJ strongly approved of the EAT’s approach (London Borough of Hackney v Sivanandan [2013] EWCA Civ 22, [2013] IRLR 408 (CA)).

269

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 6.8 to 6.12.

270

Brennan v Sunderland City Council UKEAT/0286/11, [2012] ICR 1183

271

See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 6.14 to 6.21.

272

Way v Crouch [2005] ICR 1362, [2005] IRLR 603 (EAT) para 23.

273

See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 6.22 to 6.28.

274

 Payment of Tribunal Awards (2013), Department for Business Innovation and Skills, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/253558/bi s-13-1270-enforcement-of-tribunal-awards.pdf (last visited 03 July 2019).

275

 This was noted, for example, by Louise Purcell, Professor Owen Warnock (University of East Anglia) and the Chartered Institute of Legal Executives.

276

 Annex D of Department for Business, Energy and Industrial Strategy and Ministry of Justice, Good Work: The Taylor Review of Modern Working Practices - Consultation on enforcement of employment rights and recommendations (February 2018), pp 37 and 38.

277

 See https://www.gov.uk/govemment/publications/employment-tribunal-penalty-enforcement (last visited 22 January 2020). If a claimant is successful in a claim to an employment tribunal and the respondent does not pay, an application can be made to a team at BEIS to have them fined and named publicly.

278

 See https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices (last visited 22 January 2020). This was an independent review commissioned by the Government considering the implications of new forms of work on worker rights and responsibilities, as well as on employer freedoms and obligations. It sets out seven principles to address the challenges facing the UK labour market. It was published on 11 July 2017. In ch 8, it recommends that Government should take enforcement action against employers so that employees and workers do not have to take any further steps to enforce an award where an employer fails to pay.

279

 See https://www.gov.uk/government/publications/good-work-plan/good-work-plan (last visited 22 January 2020).

280

 Department for Business, Energy and Industrial Strategy, Good Work Plan: establishing a new Single Enforcement Body for employment rights (July 2019), p 21.

281

 The scheme requires the claimant to pay a court fee, after which the ACAS and Employment T ribunal Fast Track, operated by a private contractor, Registry Trust Ltd, allocates a High Court Enforcement Officer (“HCEO”). The HCEO files the award with the county court, issues the writ of control and attempts recovery of the monies owed from the respondent. See https://www.gov.uk/government/publications/form-ex727-i-have-an-employment-or-an-employment-appeal-tribunal-award-but-the-respondent-has-not-paid-how-do-i-enforce-it (last visited 22 January 2020).

282

 See Employment Tribunals Act 1996 s 15(2). The rate of enforcement of awards in Scotland is still very low. Department for Business, Innovation and Skills research shows that just 26% of those who had not been paid, without using enforcement, took the step of engaging a Sheriff Officer to enforce the award: see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/253558/bi s-13-1270-enforcement-of-tribunal-awards.pdf at p 6. One explanation of this low uptake could be that the cost of using the services of a Sheriff Officer is significantly higher than the cost of parallel mechanisms in England and Wales. We are grateful to the President of Employment Tribunals (Scotland) for drawing our attention to this issue.

283

Information on how to enforce awards is already sent to claimants by means of a reference in the covering letter sent with the judgment to the further information available on enforcement in booklet T426. A link to an online version of the booklet is provided in the covering letter. See https://www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426.

284

 The appellate jurisdiction of the EAT derives from the Employment Tribunals Act 1996, s 21, and Trade Union and Labour Relations (Consolidation) Act 1992, ss 9(1), (2), (4), 45D, 56A, 95, 104, 108C, 126(1) and (3).

285

 We briefly summarise the CAC’s functions below. We outlined the functions of the CAC and the Certification Officer in more detail in the consultation paper: Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 7.1 to 7.13.

286

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, ch 7.

287

 See the Trade Union and Labour Relations (Consolidation) Act 1992, Schedule A1.

288

 The Information and Consultation of Employees Regulations SI 2004 No 3426; the Transnational Information and Consultation of Employees Regulations SI 1999 No 3323; the European Public LimitedLiability Company (Employee Involvement) (Great Britain) Regulations SI 2009 No 2401; the European Cooperative Society (Involvement of Employees) Regulations SI 2006 No 2059; the Companies (CrossBorder Mergers) Regulations SI 2007 No 2974.

289

 The Information and Consultation of Employees Regulations SI 2004 No 3426, reg 35(6); the Transnational Information and Consultation of Employees Regulations SI 1999 No 3323, reg 38(8); the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations SI 2009 No 2401, reg 34(6); the European Cooperative Society (Involvement of Employees) Regulations SI 2006 No 2059, reg 36(6); the Companies (Cross-Border Mergers) Regulations SI 2007 No 2974, reg 57(6).

290

 See Employment Law Hearing Structures (2018) Consultation Paper No 239, paras 7.14 to 7.17.

291

 The CAC observed in its Tailored Review report 2017, that “despite its name the CAC does not function as a committee, and neither is it exactly a court. It could best be described as a first-tier tribunal, with a quasijudicial function.” See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/682256/c entral-arbitration-committee-tailored-review-2017.pdf (last visited 22 January 2019) p 5.

292

 R (Kwik-Fit (GB) Ltd) v Central Arbitration Committee [2002] EWCA Civ 512, [2002] IRLR 395 at [2]. This view was echoed by Underhill LJ in Lidl v CAC & GMB [2017] EWCA Civ 328, [2017] ICR 1145.

293

They stated: “The CAC Annual Report of 2016/2017 for example noted that since the introduction of the recognition scheme in 2000 there had been over 1,000 applications for recognition made. As GMB understands it there have been very few judicial review applications - as of 2017 only 10 with 4 being successful (the Annual Report for 2017/2018 makes reference to a further 3 applications pending)”. The CAC’s annual report for 2018/19 reports that these claims were dismissed at full hearings and does not mention any further judicial review litigation: see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/829538/C AC_Annual_Report_2018-19.pdf (last visited 20 November 2019).

294

A concept developed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB

223 to mark the limits of judicial review in respect of administrative decisions not tainted by an explicit error of law. It is sometimes referred to as perversity or irrationality.

295

 See para 9.5 above.

296

 There is a precedent for this. Ss 15 to 19 of the Tribunals, Courts and Enforcement Act 2007 enable the Upper Tribunal to exercise judicial review jurisdiction and provision has been made for the Immigration and Asylum Chamber of the Upper Tribunal to hear certain judicial reviews of decisions made by the Home Office in the field of immigration.

297

 In the case of the transfer of judicial review functions to the Upper Tribunal in immigration cases, this was brought about by the Lord Chief Justice’s Direction Regarding the Transfer of Immigration and Asylum Judicial Review Cases to the Upper Tribunal (Immigration and Asylum Chamber) pursuant to s 18(6) of the Tribunals, Courts and Enforcement Act 2007. The Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008 No. 2698) contain nine rules relating to judicial review.

298

 These regulations are the Information and Consultation of Employees Regulations SI 2004 No 3426, reg 22(6); the Transnational Information and Consultation of Employees Regulations SI 1999 No 3323, regs 20, 21 and 21A(5); the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations SI 2009 No 2401, reg 20(6); the European Cooperative Society (Involvement of Employees) Regulations SI 2006 No 2059, reg 22(6); the Companies (Cross-Border Mergers) Regulations SI 2007 No 2974, regs 53(6) and 54(5). See Employment Law Hearing Structures (2018) Consultation Paper No 239 Employment Law Hearing Structures (2018) Consultation Paper No 239, paras 7.19 to 7.22.

299

 EAT case figures provided by Ministry of Justice, Justice Statistics Analytical Services. In 2015, two complaints under the Information and Consultation of Employees Regulations were presented to the CAC; one of which was upheld, the other withdrawn. Research shows that the employee right to request Information and Consultation arrangements has rarely been used. The CAC reports about 20 such requests since these rights came into force. See BEIS, Good Work: The Taylor Review of Modern Working Practices: Consultation on measures to increase transparency in the UK labour market, https://www.gov.uk/government/consultations/increasing-transparency-in-the-labour-market, February 2018, p 32 (last visited 24 December 2019).

300

 Employment Law Hearing Structures (2018) Consultation Paper No 239, para 7.21.

301

 Lewis Silkin referred by way of example to para 171 of sch A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 and paras 41 and 69 of the CAC’s decision in ManpowerGroup [EWC/15/2017].

302

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 8.2. See Courts and Tribunals Judiciary, High Court judges (2019), https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/judges/high-court-judges/ (last visited 23 October 2019).

303

 See Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, paras 1.9 and 8.1. Judiciary of England and Wales, Civil Courts Structure Review: Interim Report by Lord Justice Briggs, December 2015, https://www.judiciary.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf (last visited 23 October 2019), para 3.62.

304

 Where this is done, rule 30.5 of the Civil Procedure Rules makes provision for transfers to and from such a list.

305

 S 61(3) of the Senior Courts Act 1981 allows the Schedule to be amended by the Lord Chief Justice with the concurrence of the Lord Chancellor. S 61(8) requires this to take the form of a statutory instrument which is laid before Parliament.

306

 We set out the topics that our consultation paper suggested that the list might cover, and discuss consultees’ further suggestions, later in this chapter.

307

See Mezvinskyi v Associated Newspapers Ltd [2018] EWHC 1261 (Ch), [2018] FSR 28.

308

 Employment Law Hearing Structures (2018) Law Commission Consultation Paper No 239, para 8.5.

309

 Employment Tribunals Extension of Jurisdiction (England and Wales) Order SI 1994 No 1623, art 10.

310

Thompsons Solicitors.

311

 Peninsula.

312

 Thompsons Solicitors.

313

 Institute of Employment Rights.

314

 They gave the example of R (Fire Brigades Union) v South Yorkshire Fire and Rescue Authority [2018] IRLR 717.

315

 See chs 3, 6 and 7.

316

 See para 3.107 above.

317

 Section 9 judges are those selected for authorisation to act as judges of the High Court under section 9(1) of the Senior Courts Act 1981. Circuit judges, recorders and certain tribunal judges are eligible.

318

 Hannah Dahill.

319

 Professor Owen Warnock.

320

 Cloisters. This was based on the view expressed in their response to Consultation Question 53 that a specialist list would be appropriate for equalities claims.

321

 Institute of Employment Rights.

322

 Employment Law Bar Association.

323

 National Education Union.


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