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The aftermath of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

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 [2017] 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


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