One of the first employment tribunal cases to be affected by the Supreme Court’s landmark ruling that fees are unlawful has been reported by barristers chambers Ely Place. 

At a tribunal in Southampton last Thursday, employment Judge Wright ruled in what the London chambers claims is the first case of a claimant successfully arguing that time should be extended because they had to pay the fees.

The claimant, a Tesco employee, brought an original claim of disability and age discrimination but her application for help with fees was unsuccessful and she was required to pay an issue fee. When she failed to do so her claim was rejected. By the time she became aware of this, she was potentially out of time to lodge a fresh claim.

Upon the claimant issuing a second claim, Tesco argued that the tribunal should decline jurisdiction.

Represented by direct access barrister Tom Kirk in Dhami v Tesco Stores Ltd, the claimant sought to renew her challenge following the Supreme Court’s decision on 26 July that fees were unlawful ab initio. She argued that all decisions made under the 2013 Fees Order – including the rejection of her first claim – were similarly unlawful.

Pursuant to last weeks’ case management order of the tribunals president, however, any application to reinstate the first claim would have to be stayed.

However, it was argued that because the claimant had only had her first claim rejected because of the obligation to pay unlawful fees, this ought to justify a ‘just and equitable’ extension of time under the Equalty Act 2010. Judge Wright agreed and granted the extension.

Kirk welcomed the decision as a ‘natural and common sense extension’ of the Supreme Court judgment.

He told the 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.’