Time-barred discrimination claim revived following Supreme Court ruling on unlawful fees

On 26 July 2017, the Supreme Court unanimously ruled that employment tribunal fees are unlawful. Everyone has the right of access to justice but the tribunal fees have adversely affected that right. 

In Dhami v Tesco Stores Ltd, thought to be the first employment tribunal case to be heard following the Supreme Court’s landmark ruling, the claimant successfully argued that time should be extended because she had to pay the fees. 

Ms Dhami, an employee at Tesco, had brought claims for disability and age discrimination. 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. 

Ms Dhami sought to have her claim revived before a tribunal in Southampton last Thursday arguing that the rejection of her first claim was unlawful in light of the obligation to pay unlawful fees. Judge Wright agreed and granted a ‘just and equitable’ extension of time as permitted under the Equality Act 2010. 

It is worth noting that this decision comes further to an order made by the president of the Employment Tribunals Brian Doyle last week that all employment claims or applications brought to tribunal which rely on last month’s Supreme Court decision on fees should be stayed (i.e. put on hold). 

It therefore remains to be seen whether Doyle’s order will be observed until further guidance is issued (leaving employers in a position of uncertainty) or whether judges will exercise their discretion to extend the time for an individual to bring a claim before a tribunal.