A judgment has been handed down in what is thought to be the first case of a Claimant arguing that their claim should be accepted out of time, after their original claim was rejected for non-payment of tribunal fees.
Dhami v Tesco Stores Limited
Ms Dhami was employed by Tesco and originally brought claims for disability and age discrimination. At the time of presenting her claims, Ms Dhami also applied for help with fees. Her application was unsuccessful and she was therefore required to pay an issue fee under the Employment Tribunals and EAT Fees Order 2013. When Ms Dhami was unable to pay this fee, her claim was rejected. Ms Dhami issued a second claim, which Tesco argued was out of time and should be rejected.
Meanwhile, in July 2017, the Supreme Court decided that the Fees Order was unlawful, partly because it had the effect of preventing access to justice. Ms Dhami argued that her first claim had been rejected because of the obligation to pay unlawful tribunal fees and that it would be just and equitable for the tribunal to grant an extension of time under the Equality Act 2010.
The Employment Tribunal agreed with Ms Dhami and granted the extension, taking into account clear evidence that Ms Dhami had tried to bring a claim within the time limits but was denied the opportunity.
The scrapping of employment tribunal fees has the potential to open the floodgates for new claims; however, it also provides an opportunity for those who couldn’t claim because of the fees to try and bring a claim now. Such claimants may have had their claim rejected for non-payment of fees, or could simply try to argue that they were dissuaded from bringing a claim at the time because of the fees.
The President of the employment tribunals has indicated that administrative arrangements will be announced by the Ministry of Justice and Her Majesty’s Courts and Tribunals Service for dealing with applications.
It remains to be seen what approach employment tribunals will take or how much evidence of an intention to claim will be necessary to persuade a tribunal to accept a claim outside of the usual time limits We will keep our readers updated on any developments.
If you have any queries or require assistance with an employment tribunal claim please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.