Almost four years to the day since the Employment Tribunal fee regime came into force, the Supreme Court in R (on the application of UNISON) v Lord Chancellor  UKSC 51 ruled it unlawful.
On 19 August 2017 a Case Management Order (CMO) lifted the stay on all claims/applications relying on the decision. Applications for the reinstatement of claims rejected or dismissed for non-payment of fees will be dealt with by administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly. The explanatory note to the CMO indicates that such applications will be dealt with administratively and “almost certainly without need for judicial intervention or judicial decision”. What about claims that were contemplated but not brought by claimants deterred by the fees? According to the CMO, they will be dealt with in the “usual way”, which means presenting the claim and applying to extend time.
In what is thought to be the first judgment post the Supreme Court’s decision, in Dhami v Tesco Stores Ltd the Tribunal extended time for bringing a discrimination claim. The claim had originally been rejected for non-payment of fees. Miss Dhami issued a second claim out of time and argued that the fact her first claim was rejected because of the obligation to pay unlawful fees ought to justify an extension of time for the second claim on the basis that it was “just and equitable”. The Tribunal considered various factors including confusion over the effective date of termination, Miss Dhami’s attempt to bring a claim in time, and her personal circumstances.
What of unfair dismissal claims and the like where the stricter reasonable practicability test applies? It usually must be shown there was an impediment to issuing the claim, e.g. illness, or that circumstances meant it was otherwise not feasible, e.g. a misrepresentation as to the termination date. Each case will be fact-specific, but it’s arguable that the Fess Order did make it not reasonably practicable to issue a claim earlier after all the Supreme Court held that it prevented access to justice and could not reasonably be afforded. Importantly, the second stage of the test requires presentation of the claim in a reasonable timeframe following the expiry of the primary time limit so any claims should be issued promptly.
James Tunley / 1st Sep 2017
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.