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First Claim Brought Back To Life After Tribunal Fees Deemed Unlawful

Hot on the heels of the UK Supreme Court decision that employment tribunal fees are unlawful (see our previous blog), it has been reported that the first Employment Tribunal decision in consequence of the Supreme Court’s ruling has now been issued and it is one which may create further consequences for employers.

In the case of Dhami v Tesco Stores Limited, the Southampton Employment Tribunal have issued a judgment which has allowed a Claimant to proceed with a claim initially rejected because of a failure to pay the tribunal issue fee, even although the re-raising of that claim took place after the normal limitation date for lodging proceedings had passed. The decision was reached (in part) on the basis that the claimant could not afford the issue fee and, as such, it was just and equitable to allow the claim to be lodged though late as tribunal fees had subsequently been found to be unlawful.

Time limits

When submitting an Employment Tribunal claim, an employee will generally only have three months to do so (subject to any extension of time provided by ACAS Early Conciliation). When this time limit starts depends on the type of claim being raised, for example, in an unfair dismissal claim, the time limit would begin from the date of dismissal. Once this time limit passes, the claimant will not normally be permitted to raise the claim. There are only extremely limited circumstances where tribunals can extend the time limits.

There are two tests a tribunal will apply when considering whether to extend time limits and this will again depend on the type of claim being presented:

  1. In unfair dismissal and TUPE claims the tribunal will extend the time limit in circumstances where it was “not reasonably practicable” to raise the claim. This is generally considered a difficult test to meet;
  1. In discrimination claims, where it is “just and equitable” for the tribunal to extend the time limit. This can be an easier hurdle to overcome.

The Facts of the Case

Essentially the decision in Dhami relates to the apparent inability of the claimant to pay the issue fee for her claim when first lodged. Since the fee wasn’t paid to the tribunal within the specified time, the tribunal dismissed the claimant’s case. The claimant then raised the same claim again, although it was now out of time. The claimant, relying on the Supreme Court decision, argued that the rejection of her claim was unlawful since it related to non-payment of the now abolished tribunal fees. Since this was the case, the claimant argued that her second claim should be allowed to proceed since it would be just and equitable to extend the time limit to allow the claim.

The judge granted the extension of time for her second claim taking into account the fact that she had been unable to pay the tribunal fee (the Employment Judge also gave some weight to the fact that Tesco had not been clear with the Claimant as to the date her employment ended).

The Impact of the Decision

The first point to note here is that this is only an employment tribunal decision and is therefore not authoritative or binding on other tribunals. This decision does however suggest that other claimants may be able to bring time barred claims back to the tribunal where non-payment (or late payment) of the fees was the reason for the claim being rejected.

Considering the tests for extending time limits, important factors for the tribunal to consider in these cases would include evidence that the claimant could not afford to pay the fees (e.g. bank statements), rather than they were simply unwilling to. If a claimant had funds available, it would seem inevitable that they will not be allowed to re-raise proceedings. Additionally, if a claimant can show that they did not have the financial means to pay the fee, they will only have a small window of time to re-submit a claim. If they wait a number of months post the Supreme Court decision, it is less likely a tribunal would allow proceedings to be re-raised.

Last week the President of the Employment Tribunals issued an order which required all claims or applications which relied on the Supreme Court decision to be put on hold until the Courts and Tribunals Service issued guidance on how these claims should be dealt with. By issuing this order, it is clear that the Tribunals Service foresee that applications will be made to try and reinstate old tribunal claims. Employers should therefore be aware that applications regarding old claims could be revisited by claimants provided the applications made carry sufficient evidence to justify an extension of time similar to the above case.

Another issue yet to be tested in the tribunals is where a claimant didn’t raise a claim at all because of the level of the fees, would such a claimant now be able to raise a claim? The answer is potentially and it is likely that this will be an issue that the government will have to consider when drafting guidance on the implications of the Supreme Court decision.

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