Monday, 7 August 2017

Employment Tribunal Claims: It may not be too late after all

Have you been prevented or deterred from making an employment tribunal claim because of the prescribed fees you would have to pay over for the privilege? In some cases they came to £390: in others, £1,200. On an appeal to the employment appeal tribunal, they were even higher. The Supreme Court ruled on 26 July 2017 * that these fees were unlawful because they prevented access to justice. The fees are no more: gone, dead. They are no longer being charged and arrangements are being made to refund fees which have been paid over in the past.

There are specific time limits for making an employment tribunal claim and it is generally three months from the end of employment or the happening of the problem. A late claim is sometimes allowed if you can show, depending on the type of claim, that it was not reasonably practicable to make a claim within the three months or in some cases - and this tends it be easier to show- it is just and equitable that you should have more time. If, because of the fees, you did not make a claim or you made one but abandoned it before the second tranche of the relevant fees became payable then you may succeed in an application to be allowed to make a late claim. And if you were put off previously because of the fees but then sought to claim late but were denied, you may be able to successfully appeal, out of time, against the denial. Trying to reopen  a case on then basis of a change in the law has often failed. But here the fact that you were actually or effectively being unlawfully told that you had to shell out money that you could not afford before you could go  ahead or continue would be a powerful argument in favour of you being permitted to put in a late claim. It's a bit like having the doors of the court slammed in your face when you turned up to see that justice was done.

Here's the big hurdle. Despite those hefty fees, it has been possible to apply for them to be remitted, wholly or in part, under the 'help with fees' scheme. If you didn't apply to the tribunal for remission, you will have some explaining to do. Or if you did apply and were turned down, you will have some explaining to do as to why you didn't or couldn't pay the fees it was reckoned you could afford. But if you were turned down and asked to be excused paying the fees under powers to let you off on the ground of exceptional circumstances and that application was unfairly rejected, you may be in with a chance. The power was hardly even exercised - in the 12 months from 1 July 2015 in just 21 cases.

What is essential is that you now act promptly or you won't have a hope in hell of getting in late. If you haven't ever started a claim previously, you will need to notify Acas under the early conciliation process of your intention to do so.

No promises but there may be hope for you. especially if the complaint you have against the employer appears to be a strong one. That hope will be reduced should the employer be able to show that, with the lapse of time, they would now be prejudiced in resisting the case. 

It is not inconceivable that an attempt will be made in the future to reintroduce employment tribunal fees but at lower rates and following better research.

* The case was R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51