Discrimination claim revived after employment tribunal fees ruled unlawful

Following last month’s landmark ruling by the Supreme Court that employment tribunal fees are unlawful under both domestic and EU law because they had the effect of preventing access to justice, lawyers were left wondering how the courts would interpret subsequent employment tribunal fee cases in the absence of further guidance from the Ministry of Justice.

Employment tribunal fees: judge orders stay on future decisions by order

Some clarification was delivered by Judge Brian Doyle, President of the Employment Tribunals last week when he issued a case management order, staying any future decisions by order. Controversially Judge Doyle said that future tribunal fee decisions should be put on hold awaiting the ‘decisions of the Ministry of Justice and HM Courts & Tribunals Service in relation to the implications’ of the [Supreme Court] judgment.’

In spite of that case management order, it seems some courts have taken a broader view and are prepared to act without the express approval of either the Ministry of Justice or HM Courts & Tribunals Service in certain circumstances. One of the first employment tribunal cases to be affected by the Supreme Court’s landmark ruling that employment tribunal fees are unlawful has just been reported by London barristers’ chambers, Ely Place. 

At a tribunal in Southampton on August 10th, employment Judge Wright ruled in what Ely Place claims is the first case of a claimant successfully arguing that time should be extended because they had to pay employment tribunal fees.

Employment tribunal case: Dhami v Tesco Stores Ltd

The claimant, a Tesco employee, Ms Dhami, brought an original employment tribunal claim of disability and age discrimination against her employers, but her 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 she failed to do so, her claim was rejected. Unfortunately, by the time she became aware of this, she was potentially out of time to lodge a fresh claim. After Ms Dhami issued a second claim, Tesco argued that the tribunal should decline jurisdiction to hear the case.

After the Supreme Court decision that employment tribunal fees were unlawful ab initio on 26th July, barristers representing Ms Dhami sought to renew her challenge, arguing that all decisions made under the 2013 Fees Order – including the rejection of her first claim – were similarly unlawful.

Lawyers representing Tesco argued that following last week’s case management order on fees, any application to reinstate the first claim would have to be stayed. However, Ms Dhami’s representatives argued that because the claimant had only had her first claim rejected because of the obligation to pay what were now classed as unlawful fees, this ought to justify a ‘just and equitable’ extension of time under 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.

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