Employment Tribunal Fees: First claim reported referring to the Supreme Court decision
An employee has been granted an extension of time to bring her discrimination claim, on the basis that it was just and equitable for the time limit to be extended, in what has been described as the first case referring to the recent Supreme Court decision that Tribunal fees are unlawful.
In this case, Ms Dhami, a Tesco employee, originally brought a claim, which was filed in time, for age and disability discrimination. Her application for help with fees was unsuccessful and she failed to pay the issue fee, resulting in her claim being rejected. By the time she was aware of this, she was out of time to bring a new claim.
Ms Dhami subsequently brought a new claim on the same facts and applied for an extension of time to do so. As her claim was a discrimination claim, Ms Dhami was required to persuade the Employment Tribunal that it would be “just and equitable” for her claim to be heard even though it had been brought outside the usual time limits.
In support of her application, Ms Dhami pointed to confusion around her date of termination, as well as to the fact that she’d tried to bring a claim on the same facts within the time limit but had been prevented from doing so because of a decision made under an unlawful fees regime.
This followed the Supreme Court’s judgment on 26 July 2017 in the landmark case of R (on application of Unison) v Lord Chancellor, which deemed Tribunal fees unlawful because they have the effect of preventing access to justice.
The Employment Tribunals President issued a Case Management Order (CMO) that any cases brought in reliance of the Supreme Court decision on fees would be stayed in anticipation of further clarification from the Ministry of Justice and HM Courts and Tribunals Service on the implications of the Supreme Court judgment. This stay has now been lifted, although the guidance is yet to be published.
In this case, Employment Judge Wright agreed and granted an extension of time. In reaching the decision, Judge Wright accepted the points raised by Ms Dhami:
- the fact that the Claimant had tried to bring a claim in time but this was rejected for non-payment of what were unlawful fees; and
- Tesco’s own confusion over the effective date of termination had also confused the Claimant, which was the primary factor in justifying an extension.
This will likely be the first of many decisions that will be brought based on the Supreme Court’s decision last month. Individuals will attempt to revive claims previously rejected under the fees regime or bring may new claims on the same facts as their rejected claims, in the same way as Ms Dhami. Some individuals may also bring entirely new claims on the argument they were previously dissuaded from doing so due to the fees regime. It is an interesting time for Employment Law and it is likely that we will receive further guidance from the Employment Tribunals President during September.
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