The Law Commission’s present review of the 3-month limitation period for bringing Employment Tribunal (ET) claims provides an interesting opportunity for reflection.
Apart from equal pay and redundancy pay claims, where the limitation period has been 6 months for decades, the 3-month window for all other ET claims is something with most of us in HR and employment law are very familiar. I suspect we don’t give it much thought – it’s part of the furniture of employee relations. But is it still fit for purpose?
It’s worth looking back to when the 3-month window was conceived, decades ago. I understand that it was decided upon primarily in order to encourage speedy resolution of workplace disputes. However, that was in the days when speedy resolution was the clear expectation and you could expect a hearing within a month or so of submitting your claim, and the hearing itself lasted often only one day or even less. It was indeed all very speedy – a description that no-one can now apply to the current ET process. Even 1-hour ‘wages’ claim hearings are currently being set for 6 or 7 months after the claim has been received.
I could write a whole page bemoaning the current extreme shortage of Employment Judges, ET staff and indeed ACAS Conciliation Officers, a combination of a failure to recruit following the large upturn in ET cases after the abolition of ET claim fees and also the swaging cuts of the Government’s austerity programme. But even setting aside these delays, the fact is that many ET cases tend to be a great deal more complicated and long-winded than they used to be even 20 years ago when I started doing them, let alone in the early 1970s when they were first established.
The significant extension of document disclosure obligations (no longer just the documents that help your case, but every document you hold that relates to the case either way); the many sedimentary layers of case law from previous appeal decisions over almost 5 decades; and – dare I say it – the regular use of barristers: these all go to make the average ET claim these days a large beast that would be almost unrecognisable to an early users of the Industrial Tribunals (as they were then) of the early 1970s. And with many cases requiring preliminary hearings and further hearings after the main trial to consider compensation, many cases take 6-12 months to be completed. Some take years.
My point is that nowadays claims take so long anyway that the original ‘speedy’ concept has been almost entirely lost.
So much has changed
I fully accept that employers find it useful that the window for an employee to bring an ET claim is so short and may want to lobby hard for it to remain. As the months go by after a dismissal or allegedly discriminatory event, memories start to fade, managers move on and perhaps evidence gets lost. It is very helpful to know sooner rather than later that a claim is coming. There can be enormous relief when that period passes and an anticipated ET claim from a disgruntled ex-employee fails to arise.
But nowadays the ‘wait 3 months and then we’re safe’ no longer holds true. For a start, the ACAS early conciliation period means that a claimant can contact ACAS on the last day of the 3-month period and then the early conciliation starts, which may take some time and then there is additional time for the claimant to lodge a claim if the conciliation is unsuccessful. Secondly, even when the claim hits the ET’s doormat, the understaffing and underfunding at the ET service which I’ve mentioned means that it can sometimes be several more weeks before the employer receives notification of the claim.
And on top of all that, there is the power of the ET to allow in a ‘late’ claim for a range of reasons if there are good grounds for doing so. These grounds differ between unfair dismissal claims (rather hard to persuade an ET to accept a late claim) and discrimination claims (considerably easier to get in a late claim, for all sorts of good reasons).
So for all practical purposes, the old practice of an employer being able to wait 3 months and then know they were safe is gone for good anyway.
Some deserving cases
With the vast majority of my work being to support employers in defending ET claims, I have a lot of sympathy with those who might wish to keep the 3-month rule. But there are a couple of types of claim where I consider 3 months to be too short and, as a result, unjust.
The first of these is with pregnancy/maternity discrimination claims. Every year in the UK, tens of thousands of working women find themselves dismissed from their jobs within a year or so (sometimes just days or weeks) of telling their employer they are pregnant. Nowadays I don’t suppose any more than a handful are as blatant as “you’re fired because you’re pregnant”. No, they are more subtle than that. One of the most common ways is the ‘redundancy’ that coincidentally arises during maternity leave. Employers may even convince themselves that the dismissal was nothing to do with the employee’s pregnancy or maternity leave, but my hunch is that unconscious bias operates every time. Often it’s staggeringly obvious.
There is one thing that women who are pregnant or on maternity leave have in common with each other but no other dismissed employees do, and that is the fact that their lives are (or are about to be) almost entirely devoted to a newborn baby. And they won’t be getting a lot of sleep for a while. I have spoken to many women who find themselves made ‘redundant’ during maternity leave and, while their experiences with their babies all differ a little, they have appeared united in the lack of ability to have the time or energy to think about bringing an ET claim.
For any woman bringing a discrimination claim on the grounds of pregnancy or maternity, I would say that a 6-month limitation period seems fair and justified. I’m sure that even 6 months is far too short, but there does have to be some limit and at least 6 is better than 3 in this situation.
The other type of claim where I believe the limitation period should be extended to 6 months is disability claims. Life can often be hard enough for a disabled person without suffering discrimination into the bargain. And I am thinking particularly of those with mental illness when I suggest that 6 months would be a more reasonable period within which for them to get over the initial upset (or trauma) of the discriminatory event(s), think about their situation carefully, obtain and consider legal advice and put together a claim.
I cannot see many of you queuing up to argue strongly with me about giving a 6-month window to pregnancy/maternity and disability discrimination claims. Am I right?
6 for all?
A final thought: perhaps a way to simplify the current situation, where an employer can end up waiting a lot longer than 3 months to learn if a claim is being brought, would be to extend the period to 6 months for all types of claim, but to have that 6-month point as a very firm deadline – much stricter than at present. In other words, the ACAS early conciliation period would have had to been started and finished by then; and the rules would permit no ‘late’ claims in anything but the most highly deserving cases – such as the claimant having a very serious illness which prevented them from, say, taking legal advice or mentally understanding their situation until after 6 months, and perhaps even then with a long-stop of 9 or 12 months.
Simplicity and certainty are so important when it comes to devising rules. This might be a way of balancing up the competing interests of employer and employee nicely.
If you have any views on this, I’d love to hear them.
Email Luke or call 0117 325 0921