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Are the floodgates open for historic tribunal claims?

One of the first cases to be affected by the ground-breaking Unison decision that employment tribunal fees are unlawful has been reported. In Miss Dhami v Tesco Stores Limited, Miss Dhami successfully argued that it would be just and equitable to extend the time limit for her claim, which had been previously rejected because she did not pay the tribunal fees.

Miss Dhami had previously brought a claim of disability and age discrimination within time, but had failed to see the email enclosing the notice to pay the tribunal fees. Miss Dhami failed to pay the issue fee and her claim was therefore rejected.

Miss Dhami submitted a second claim form and a preliminary hearing was listed to deal with the matter of whether it would be just and equitable to extend the time limit for her second claim. Under s123(1)(b) of the Equality Act 2010, employment tribunals can extend the usual three-month time limit for bringing a discrimination claim if it is “just and equitable” to do so.

The Tribunal noted that following the Unison decision that tribunal fees were unlawful, the rejection of her original claim was incorrect and unlawful. At the time of Miss Dhami’s preliminary hearing, the Presidents of the Employment Tribunals had issued a Case Management Order in early August that any claims and applications arising from the Unison decision should be stayed (meaning that if Miss Dhami wanted to make any application in respect of her original claim form, it would be stalled). However, Miss Dhami was arguing that the Tribunal should extend the time limit for her second claim form, rather than making an application in relation to the first claim form.

Decision

Employment Judge Wright granted the extension to allow Miss Dhami’s second claim to progress. It was noted that there was confusion on both sides as to the effective date of termination and that there were various factors personal to Miss Dhami that meant it would be just and equitable to allow the extension. Miss Dhami was going through a time of financial difficulty, facing mental health difficulties and was pregnant with two young children to look after at the time that she had received the email notifying her of the tribunal fees.

In addition to the above factors, the Judge found that it would be ironic if, in view of the Unison decision on fees, Miss Dhami’s second claim, which was trying to rectify the unlawful rejection of her original claim, was held to be out of time. The fact that the original claim form was submitted in time and was unlawfully rejected due to non-payment of tribunal fees was an additional factor that the Judge took into account when deciding whether the just and equitable test was met.

Comment

Of significance was that Miss Dhami was able to prove that she had made prompt attempts to bring her original claim within time. This decision makes it a possibility for claimants to argue that it would be just and equitable to allow extensions in out of time discrimination claims where their claim was originally rejected because they failed to pay tribunal fees. However, the importance of this case should not overstated as there were clearly a range of other personal issues that impacted on the decision in this particular case. Whilst tribunals do have a wide discretion when considering whether it is just and equitable to extend time, they should not extend time unless the claimant convinces them that it is just and equitable to do so. Claimants may have difficulty proving that it was the requirement to pay fees, rather than something else, that deterred them from issuing claims.  It also remains to be seen how far back tribunals will be willing to apply this discretion.

Stay on cases has been removed

The Presidents of the Employment Tribunals has since lifted the stay on all claims and applications arising from the Unison decision. This means that, in addition to applications that it would be just and equitable to extend time-limits for discrimination claims, it is likely there will be more applications being made for reimbursement of fees, or for the reinstatement of claims rejected or dismissed for non-payment of fees in the coming weeks and months.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further