Last month the Supreme Court ruled that Tribunal fees were unlawful leading to them being scrapped. One issue this raised was what would happen to cases that did not proceed because of failure to the fee.
In Dhami v Tesco Stores Ltd it appears that Claimant has been successful in arguing that her case should be reinstated after failure to pay a fee. Ms Dhami’s initial claim was dismissed after she failed to pay her fee on time following a failed remission application.
Cases usually need to be brought within 3 months of the incident they relate to, not including the period of Early Conciliation. However, under the Equality Act 2010, an extension to this deadline can be granted to discrimination claims if it is just and equitable to do so. It seems in this case, the ET has allowed the claim to continue despite being well out of time.
Each case will vary on its own facts but this could lead to a wave of backdated discrimination claims that were struck out for similar reasons during the 4 years of fees. It seems that there has already been a rise in claims since the abolition of fees and this case could result even more going through the system. In any event, employers need to be wary that dismissed employees are far more likely to bring a claim and for discrimination cases this may apply to employees who were dismissed whilst fees were in place.