Employment Rights Bill: Tribunal time limit to be extended

by Personnel Today

This was never included in the original draft of the bill but did feature in Labour’s pre-election green paper on workers’ rights, its New Deal for Working People.

The bill is about to go to committee stage, where MPs consider the proposed amendments. Most of those contained in this document are tabled by employment rights minister Justin Madders, although there are also a number of suggestions from other MPs. The amendment paper runs to 53 pages.

The amendment paper also sets out an “initial period of employment” for the purposes of a day-one right to unfair dismissal, a question that many employers raised when the bill was first published. The amendment proposes that this should be between three and nine months.

A number of clauses on the proposed rules around workers’ guaranteed hours and entitlements if their shifts are changed have been slightly amended to deal with moving and/or curtailing shifts.

MPs have also put forward a number of other changes, including a clause that renders void non-disclosure agreements that prevent workers from making disclosures about sexual or other forms of harassment (Liberal Democrat MP Layla Moran).

Another clause prohibiting the use of substitution clauses in agreements between (a) an employer or a contractor of services, and (b) an employee, worker or dependent contractor, has also been proposed (Conservative MP Nick Timothy).

The amendment document now goes forward to the Committee to prompt debate and although some will be withdrawn, Government amendments are those most likely to be passed.

In his A Range of Reasonable Responses blog, employment lawyer Darren Newman said he thought the tribunal time limit change would be welcomed: “The fact is that a three-month time limit for what might be a significant legal claim is absurdly low. It made sense when many employment rights were introduced in the 1970s and it was assumed that a case would be heard within a few weeks of it being brought. But with many claimants waiting more than a year to get to a full hearing, the need to put a claim in within a three-month period is hard to justify.”

Kayleigh Williams, an associate in the employment, immigration and reward team at Lewis Silkin, said there could be an unintended downside, however: “Though there is a chance that the change could be welcomed in some cases, for example where a grievance or certain negotiations with an employee do not have enough time to conclude before a claim has to be submitted, ultimately, like other changes proposed by the Bill, extending the time limits for bringing a claim in the tribunal may lead to more uncertainty and an increase in claims overall.

“This increase in claims will inevitably place additional strain on an already struggling tribunal system (unless extra funding / resources are made available), leading to further delays. Though we are currently unsure exactly when the new timescales will apply, employers may wish to prepare by checking any data retention policies which are based on a three-month time limit.”

While many employment bodies welcomed the initial draft of the bill when it was published in October, a number criticised it for being rushed out within the first 100 days of the Labour government.

The Federation of Small Businesses called it “clumsy, chaotic and poorly planned”, and the British Chambers of Commerce said many employers felt the reforms were “being rushed through at breakneck speed”.

Earlier this week, the Regulatory Policy Committee warned that the government’s impact assessment on the reforms was “not fit for purpose”, and that it had underestimated the impact of the legislation on wages and jobs.