Labour Research October 2017

Law Matters

Tribunal fees ruling helps revive discrimination claim

In one of the very first decisions to be made partly based on UNISON’s recent Supreme Court victory establishing that tribunal fees are unlawful (see Labour Research, September 2017, page 4), an Employment Tribunal (ET) has extended the time limit of a claim that was originally rejected on the basis of failure to pay tribunal fees.

London Barristers, Ely Place Chambers, have confirmed that the case of Dhami v Tesco Stores Ltd has been allowed to proceed, despite the claim being out of time. 

Miss Dhami, who was employed by Tesco, had her original claim rejected when she failed to pay tribunal fees, in force at that time under the Employment Tribunals and EAT Fees Order 2013. Dhami’s original discrimination claim was filed in time, but her application for help with fees was rejected so she was obliged to pay an issue fee. 

However, she failed to pay and as a result her original claim was rejected. She then issued the claim for a second time and doubts arose as to whether this was in time or no

Dhami could have argued her claim should be allowed on two grounds. Firstly, that as the fees order had been found to be unlawful, any decisions taken under it were also unlawful and the first claim should be revived. However, at the time of the application, there was an employment tribunal case management order in place (since lifted) which determined that any such application to reinstate the first claim would have to be put on hold.

So instead, Dhami argued for a "just and equitable" extension of time for the second claim under Section 123 (1) (b) of the Equality Act 2010, on various grounds.

Ely Place Chambers reports that the tribunal confirmed the extension of time was just and equitable as there had been confusion over the effective date of termination of employment, and Dhami’s personal circumstances also had an impact. 

But it is of particular note that the the tribunal also took into account that Dhami had tried to bring a claim in time, but had this opportunity denied to her when her first claim was rejected for non-payment of unlawful fees.