Posted by Kate Benefer, Partner
Employment Tribunal claim revived after Supreme Court had declared fees illegal
In July, the Supreme Court unanimously decided that Employment Tribunal fees prevented access to justice and were unlawful. Here I examine one of the first cases to have been affected by this decision.
In Dhami v Tesco Stores Ltd., the claimant argued that the time limit for her claim should be extended, on the basis that it had been originally rejected as she had failed to pay the fee.
The Judge allowed the extension.
The claimant, a Tesco employee, originally brought a claim of disability and age discrimination. However, her claim was rejected when she failed to pay the – now unlawful – Tribunal fee.
Following the decision made by the Supreme Court, the claimant sought to have her case revived on the grounds that it would be ‘just and equitable’ to extend time from the date of rejection. The rejection was unfair, the claimant argued, as it had been based on the provision that she had to pay an unlawful fee.
The Judge allowed the extension, as the claimant had tried to pursue her claim within the time limit, and it had only been rejected due to her failure to pay the fee.
What does this mean for employers?
It is not known what this decision will mean for other similar cases, and whether it will stand as a precedent. However, the facts suggest that where a claim was originally issued in time but was rejected due to the fee not being paid, in some circumstances it could now proceed. In theory, this could lead to employers having to defend claims which relate to matters from several months or even years ago.
Employers should be aware that the removal of Employment Tribunal fees is likely to mean an increase in the number of cases brought to an Employment Tribunal, and this could include claims which are historic.
Our Employment & HR team will continue to monitor developments and bring you further updates following the Supreme Court’s decision.
For advice on Employment Tribunal claims, or any other employment law matter, please get in touch with our specialist Employment & HR team:
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