Employment Tribunal Fees - Tribunal Allows Out-of-Time Discrimination Claim
In the first case of its kind, the Employment Tribunal (ET) has allowed a Claimant to proceed with a discrimination claim that was initially rejected for failure to pay the now unlawful issue fee.
Background
We have previously reported on the Supreme Court's landmark ruling in the case of Unison v Lord Chancellor that the fee regime in the employment tribunal was unlawful as it prevented proper access to justice. The ruling required that fees paid by claimants should be re-paid. It also opened the door for claimants to revive their claims where these were previously rejected for a failure to pay the issue fee.
In the case of Dhami v Tesco Stores Limited, Ms Dhami had initially brought claims in the ET for disability and age discrimination against Tesco, but her claims were rejected for failing to pay the issue fee. When Mr Dhami realised that her claims had been rejected she raised the same claims again, albeit out of time. Tesco sought to have the claims struck out on the basis that they were out of time. One of the issues raised by Ms Dhami in resisting Tesco's application was that the rejection of her original claim was unlawful as it related to non-payment of tribunal fees which had subsequently been abolished.
The ET judge allowed Ms Dharmi's claim to proceed. Whilst there were several factors that the judge took into consideration, one was that Ms Dhami had attempted to bring a claim within the time limit, but this was rejected for non-payment of the now unlawful fees.
What Impact Will This Decision Have on Other Cases?
It is worth bearing in mind that this is an ET decision and so it is not authoritative or binding on other tribunals. However, the approach adopted by the ET in this case suggests that other claimants may be able to revive time-barred claims where late or non-payment of the tribunal fees was the primary reason for the claim being rejected in the first place.
It is likely that those claimants who find themselves in a similar position to Ms Dharmi will only be given a relatively small window of opportunity to re-submit their claim in light of the Supreme Court's ruling in Unison.
It remains to be seen what approach the tribunals will adopt in cases where a claimant who chose not to bring a claim at all due to the excessive fees, now wishes to do so outside the usual time limits. It is likely that the government will address this issue when it publishes guidance on the implications of the Supreme Court's ruling in due course and we will keep you updated with any developments.
Presidential Case Management Order Lifted
We have previously reported on the order of The President of the Employment Tribunals in England & Wales issued earlier this month, which stayed all employment claims and applications in the tribunal seeking to rely on the Supreme Court's landmark ruling to scrap fees. This order was lifted on 18 August, allowing claims and applications to proceed.