The Employment Rights Bill is about to reach the stage when the Commons Committee considers proposed amendents. Some of these are proposed by the opposition but I don’t think we need to spend too much time on them. They are proposed for the purposes of prompting debate but will almost always be withdrawn without a vote. In some cases the Government may accept that a particular member has a point, but usually that means them undertaking to present a properly drafted amendment of their own at the Report Stage. 

What we need to be on the lookout for are Government amendments. These will almost certainly be passed and they show the development of Government thinking as the Bill progresses. Many of them are purely technical – fixing typos or tying up loose ends. Other are mote substantive and can even introduce completely new measures. 

This week the Government has tabled a huge raft of amendments (Government amendments are the ones proposed by Justin Madders, Minister at the Department of Business and Trade). A good number deal with the right to guaranteed hours – making it even more complex. I am starting to think that the Government might be in trouble with this provision. It is simply too complicated to be workable. It leaves a great deal to be sorted out in later Regulations, but as the Employment Lawyers Association says in its written evidence to the committee secondary legislation does not tend to simplify primary legislation. Might we see a re-think as the Bill progresses?

One completely new reform inserted by these amendments is an extension of the limitation period for bringing an employment Tribunal claim from three months to six. This is a significant change – doubling the time that an employee has to decide whether or not to bring a claim against their employer. 

There was no mention of this when the Bill was published – although Labour’s policy document ‘Make Work Pay’ did indicate that it was something the new Government would do. I suspect that the reason it was not in the original bill is that the change takes a lot of detailed drafting – changing the word ‘three’ to ‘six’ in (I counted) 115 different places. These range from the obvious claims in the Employment Rights Act 1996 to the rather more obscure Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004. I suspect it has taken until now to complete the list of measures affected. 

I think this change has to be welcomed – although employers may well regard it as one more way in which the balance of employment law is being tilted away from them. 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 is hard to justify. The Law Commission recommended this change back in April 2020 so the idea has not simply been plucked from the air.

Will the impact be more claims or fewer? There is an argument that giving people six months before having to make a claim gives claimants longer to seek a resolution to their dispute rather than being hurried into issuing Tribunal proceedings. My view is that this effect will be outweighed by the people who are no longer prevented from bringing a claim in time because it takes too long to organise legal advice or because they were seeking an internal resolution first. A victim of harassment for example might well seek to resolve matters internally through the employer’s grievance process and not think of making a claim until that is exhausted. In many cases it is then already too late. There will, I think, be more claims as a result of this change.

Of course, there are circumstances in which the time limit for bringing a claim can be extended. The pursuit of Acas early conciliation can typically put the deadline back by a month or so (its complicated, don’t ask). The Tribunal may also choose to extend the deadline. In a discrimination or harassment claim they can do this when they consider that it would be ‘just and equitable to do so’. In an unfair dismissal claim (among others) they can do so only when it was not reasonably practicable for the claim to have been brough within the time limit. That is a much stricter test and in 2020 the Law Commission – in addition to recommending an increase in the time limits to six months – recommended that all Tribunal claims should be subject to the ’just and equitable’ test for an extension. There is no sign of the Government moving in that direction yet – but there is still time for more amendments to be tabled