Call to extend Employment Tribunal time limit to 6 months
Policy, Research and Influencing Manager, Adam Freedman, said:
“National AIDS Trust warmly welcomes the introduction of the Government’s Employment Rights Bill to Parliament. People living with HIV continue to experience discrimination in the workplace, and the provisions in this Bill are key to strengthening workers’ rights and protections”.
“However, further attention must be given to ensure that people are able to bring discrimination cases and realise their rights in practice - additional provisions in this Bill are needed so that people living with HIV can access recourse at the Employment Tribunal to challenge workplace discrimination whenever it happens.”
What is missing from the Bill? sufficient time to bring a claim to an Employment Tribunal
People living with HIV who experience unlawful discrimination at work often seek justice at an Employment Tribunal. However, the current time limits to bring a claim (three months minus a day from the date of the incident of discrimination) are too restrictive and unduly limit the opportunity for people to make claims.
Discrimination can impact upon a person’s wellbeing and mental health, and in some cases have a lasting impact on their ability to work. This can be particularly acute for people living with HIV – the 2022 Positive Voices survey found that 32.1% of people living with HIV reported low self-esteem due to their HIV status, whilst 39% of people living with HIV have a diagnosed mental health condition. An experience of workplace HIV discrimination is only likely to exacerbate these feelings of low self-esteem.
When someone experiences workplace discrimination, the current time limits to bring a claim to the Tribunal can force them to prioritise legal action at the expense of their mental health and wellbeing. For people living with HIV, who have to advocate for themselves in difficult situations, pursuing a discrimination claim can be very challenging and triggering. They need to have time and space to pursue a legal case in a timeframe that does not take an additional toll on their wellbeing.
Labour’s “Make Work Pay” policy paper, published before they won the General Election, stated that they would enact the April 2020 Law Commission recommendation to increase the time limit within which employees are able to make an employment claim from three months to six months.
By not including this in the Bill, a key opportunity to further strengthen anti-discriminatory measures and ensure access to recourse for employees and other workers when they experience discrimination, such as discrimination based on HIV status, has been missed.
People are experiencing workplace discrimination and finding themselves unable to access Employment Tribunals now – and this needs to be dealt with urgently. We do not believe that there should be discrepancy between the time limits for civil courts and Employment Tribunals.
Changing the time limit to access Employment Tribunals: our proposal
We propose a new clause to the Employment Rights Bill to improve access to Employment Tribunals in relation to potentially unlawful conduct under the Equality Act 2010. We suggest this should be done by amending Section 123(1)(a) of the Equality Act where it says, “3 months” to read “6 months”.
Allowing people who experience discrimination in the workplace, including those living with HIV, to bring claims to a Tribunal up to six months after a discriminatory incident occurs will expedite the promise the Labour Party made prior to the General Election.
National AIDS Trust will be making the case for this amendment, as well as other pertinent issues relating to workplace HIV discrimination, as the Bill makes its progress through Parliament.
What we welcome about the Bill:
There are many measures in the Bill that we strongly support, as they will help to reduce discrimination in employment against people living with HIV:
- The right to request flexible working will be strengthened, shifting the focus so that employers should typically grant these requests unless they fit a set number of limited conditions for refusal.
- The rules on statutory sick pay are set to be changed, allowing people to claim this from the first day of illness, and removing the current Lower Earnings Limit.
- A change will be made to the Equality Act 2010, making it unlawful for employers to allow an employee to be harassed by a third party (e.g. a customer) based on their HIV status.
- Everyone will be protected from unfair dismissal from day one of employment, replacing the current two-year qualifying period. Probationary periods will still be lawful.
- Employers will be required to provide a written statement to workers that they have the right to join a trade union at the start of their employment.
- Equality representatives in trade unions will be protected from unfair treatment from their employer if this happens in relation to their work to make their workplace more inclusive.
While we are supportive of these areas, we will be looking to the specific details about implementation that the Government intend to introduce later by separate regulation.
We welcome the Government signalling the future intention to modernise workplace health and safety legislation and guidance to “reflect the diversity of the workforce”. We would value the health and safety issues related to preventing HIV transmission and HIV discrimination being taken into account as part of this work.