Claimant who had to pay unlawful Tribunal fees succeeds in limitation argument

Dhami v Tesco Stores Limited (Southampton Employment Tribunal)

On 10 August 2017, Employment Judge Wright handed down judgment in what is thought to be probably the first case of a Claimant successfully arguing that time should be extended because they have had to pay unlawful Tribunal fees.

The Claimant was employed by Tesco and brought an original claim of disability and age discrimination that was filed within time. However, the Claimant’s application for help with fees was unsuccessful and she was required to pay an issue fee under the Employment Tribunals and EAT Fees Order 2013 (“the Fees Order”). When the Claimant failed to pay this fee, her original claim was rejected. By the time she was informed that it had been, she was potentially out of time to bring a fresh claim. Upon the Claimant issuing a second claim, Tesco argued that the Tribunal should decline jurisdiction to hear the same.

On 26th July 2017 the Supreme Court delivered judgment in the landmark case of R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, which quashed the Fees Order holding it was unlawful under both domestic and EU law because it had the effect of preventing access to justice.

Miss Dhami sought to argue that since the Fees Order was deemed unlawful ab initio, all decisions made under it, including the rejection of her first claim, were similarly unlawful. However, pursuant to the recently issued Case Management Order of the President of the Employment Tribunals, any application to reinstate the first claim would have to be stayed. The Claimant’s alternative argument was that the fact the Claimant had only had her first claim rejected because of the obligation to pay unlawful Tribunal fees ought to justify a “just and equitable” extension of time under section 123(1)(b) of the Equality Act 2010.

Employment Judge Wright agreed and granted an extension of time. She held that Tesco’s own confusion over the effective date of termination had confused the Claimant, whose personal circumstances also justified an extension. The Judge took into account the fact the Claimant had tried to bring a claim in time but had this opportunity denied by the rejection of her first claim for non-payment of what were unlawful fees.

You can read the written reasons here

To read a related article in the Law Society Gazette click here

Tom Kirk represented the successful Claimant at this Preliminary Hearing, instructed on a Direct Access basis through Clerksroom Direct

14th August 2017