Employment tribunal judges should be allowed more leeway to hear disputes that are brought outside of the time limit for bringing a claim, an MP has suggested.
Conservative Mike Penning will use an adjournment debate in parliament today to call for more ‘autonomy’ for judges when they decide whether or not to hear a case.
The former justice minister will call for judges to be afforded a degree of flexibility in their decision-making and for the test for bringing a late unfair dismissal claim to be more aligned with discrimination claims.
As it stands, claimants have three months from the date of dismissal to bring a case. If a claim is brought outside this period the tribunal may consider if there are mitigating circumstances. In cases alleging discrimination a tribunal will apply a ’just and equitable’ test and in unfair dismissal cases it will assess whether it was reasonably practicable to bring a claim at the time. Employment solicitors say it is far less problematic to meet the just and equitable test.
Penning, MP for Hemel Hempstead, called for the debate after a constituent who was fighting an unfair dismissal claim died within the three-month time frame. The man’s wife took on the case but Penning said judges had little choice but to throw it out because she was out of time.
He told the Gazette: ‘It’s time that judges were told they could use a bit of common sense and have some autonomy with what they are and are not allowed to do within this time frame. Given a tragedy like this you would expect there to be a delay to allow for time to grieve and attend to administrative matters.
‘I don’t believe a blanket extension is necessary but rather a bit of leeway for judges. If we want justice to occur surely there has to be a degree of autonomy in this.’
Kerry Underwood, senior partner at Underwoods Solicitors, said he supported Penning’s argument that judges be allowed more autonomy in deciding whether to hear cases, particularly in instances where a claimant would have to prove it was not reasonably practicable to bring a claim.
He added that he would also support bringing the requirements for unfair dismissal more into line with discrimination cases.
‘Proving it was not reasonably practicable to bring a claim is far harder to prove than the “just and equitable” test. On unfair dismissal claims a judge could theoretically tell a claimant who suffered a tragedy in the second or third month that they could have brought the case in the first month.’
He added that he would like to see parties able to agree to extend deadlines, as in personal injury cases.