17 August 2017

A claimant who was originally blocked from access to justice due to non-payment of tribunal fees has been granted an extension on the time limit to bring new claims after the fees were found unlawful.

Miss Dhami originally tried to bring a disability and age discrimination claim against her employer, Tesco, but failed to pay the issue fee after her application for help with payment was unsuccessful. As a result of non-payment, her claim was rejected by the courts, by which time she was nearing the time limit to bring a new claim. She submitted a second claim, but Tesco argued that the Tribunal should decline jurisdiction.

On 10 August 2017, Southampton Employment Tribunal made what is thought to be the first ruling that a claimant affected by the fees should be given an extension on the time limit to bring a claim after Miss Dhami successfully argued that her case would have been timely had it not been for the unlawful tribunal fees.

Tom Kirk, her barrister, told the Law Society Gazette: "This provides an early sign that tribunals may be willing to consider not only the unlawfulness of the fee regime, but the stifling effect it has had on some claimants' ability to bring their claims within time.

"Only time will tell how, and to what extent, these principles will affect future out of time arguments. Ms Dhami ultimately succeeded in part because she was able to prove that she had made prompt attempts to bring an original claim within time but had that claim rejected for non-payment of what was an unlawful fee. The tribunal also had regard to other personal circumstances which made it just and equitable to extend.

"In other situations, claimants may seek to argue that, whilst they did not make such attempts, they would have done so had the Fees Order not applied. Whether time could or should be extended in this different class of case is far from clear, as is the question of how a claimant would actually prove it was the requirement to pay fees (as opposed to something else) that deterred them from issuing a claim."

Miss Dhami originally sought to argue that the rejection of her initial claim was unlawful given that the sole barrier to her making the claim – the tribunal fees – were found to be unlawful. However, a recent Case Management Order of the President of the Employmet Tribunals would have meant an application to reinstate her first claim would have to be stayed.