Following the Supreme Court’s decision in R (on the application of Unison) v. Lord Chancellor (Unison) there was speculation as to whether there would be an influx of applications requesting an extension of time on the basis that, if it were not for the illegal fees, the cases would have been brought in time. The first of these cases has now been brought.
In Dhami v. Tesco Stores Ltd (Dhami) the claimant brought discrimination claims against Tesco within the required time limits. She had initially applied for fee remission but this was rejected. When she did not pay the issue fee her case was thrown out. Following Unison the claimant issued a second claim. Tesco argued that the Employment Tribunal (ET) should decline jurisdiction. However, the claimant successfully argued that (i) all decisions made under the 2013 fees order, including the rejection of her original claim, were unlawful and (ii) it would be just and equitable for the time limit to be extended under s123(1)(b) of the Equality Act 2010 to allow her claim in the circumstances.
In granting the extension of time the ET took into account Tesco’s own confusion as to the effective date of termination, the personal circumstances of the claimant, and the fact that the claimant had tried to bring a claim in time. It was significant that the non-payment of fees was the reason for the claim not being able to proceed.
It remains to be seen whether, in light of the claimant’s success in Dhami, we will see many more of these claims. Whether or not claimants who did not try to bring a claim in time will have similar success is uncertain. In particular, it is not clear how such claimants would prove that it was the requirement to pay fees that prevented them from issuing a claim.
For our previous post on the Unison decision please click here.