With employment tribunal fees ruled unlawful, is the door open to late claims?

Tracey Moss examines what arguments are available to those who didn’t claim because of fees

This article was originally published in the October 2017 issue of Adviser magazine, under the title ‘The Unison ruling and late claims’, and was correct at the date of publishing.

In a landmark decision in July 2017, the Supreme Court upheld an appeal brought by Unison in its judicial review against employment tribunal fees, ruling that they were unlawful and striking down the legislation that introduced them. The decision had wide-reaching implications for access to justice and to the courts generally.

The Supreme Court held that the government’s fee regime for employment tribunals (requiring payment of up to £1,200 for unfair dismissal and discrimination claims and £390 for other types, including issue and hearing fees) was unlawful; the fees were so high that they put people off making or continuing claims, even those that were likely to succeed.

Tribunals immediately stopped collecting fees, but there are other consequences of the ruling. It has raised the question of whether those who were put off from pursuing a claim can now do so. They will fall into two groups: those who simply did not make a claim at all and who are now out of time, and those who paid to start a claim but withdrew it when required to pay a hearing fee.

Time limits and late claims

Most employment tribunal claims have a three-month time limit, the notable exceptions being claims for redundancy pay and equal pay. These are strict, but a tribunal has the power to accept a late claim in certain circumstances.

For discrimination and unlawful detriment claims, the tribunal can allow a late claim if it is ‘just and equitable’ to do so. This is a more generous test than for other claims, where a late claimant must show that it was ‘not reasonably practicable’ to issue a claim on time. Equal pay and redundancy pay have different rules again.

Are tribunals likely to accept late claims because of the Supreme Court decision?

We are in uncharted waters here. Previous cases where late applications have been made, following a change in the law after a time limit has passed, have met with mixed success. For example:

• A late claim of sex discrimination was allowed when a new court decision outside the claimants’ time limit made it possible to challenge a voluntary redundancy scheme (British Coal Corporation v Keeble [1997] IRLR 336)
• In 1994, the House of Lords ruled that a requirement for part-time workers to have three years more service than full-time workers to claim unfair dismissal or a redundancy payment was unlawful. B, who had worked part time and been unable to claim unfair dismissal, promptly submitted a claim that was 18 years late. The Court of Appeal dismissed her claim, saying that it had been ‘reasonably practicable’ for her to submit it on time; she could have made a claim and argued herself that the different treatment of part-time and full-time workers was unlawful (Biggs v Somerset County Council [1996] IRLR 203)

From these decisions it may appear, after the Supreme Court’s decision on fees, easier to get late discrimination claims accepted than other types. However, the situation while fees were payable was unique; unlike B, who could at least have argued her claim in front of a tribunal 18 years earlier, a claimant who was put off by fees was simply prevented from bringing a claim at all.

Until we see some case law on fees and late claims, the opinion of the Expert Advice Team at Citizens Advice is that:

• It might be easier to get a claim accepted where the test is whether it would be ‘just and equitable’ to allow it rather than whether it was ‘not reasonably practicable’ to claim in time.
• However, the Supreme Court placed an emphasis on the impact of fees on low-value claims. In modest wage claims, for example, which are subject to the ‘not reasonably practicable’ test, the Court recognised that the £390 fee was out of proportion to what an individual was likely to recover. This seems to require the ‘not reasonably practicable’ test to be interpreted in favour of allowing late claims.
• If the claim should have been issued while fees were payable, it will not necessarily matter whether the claim is four weeks or four years late, as long as it is issued quickly now that the Supreme Court has made its decision. However, one factor to be taken into account in a request for a ‘just and equitable’ extension of time is any hardship an employer will suffer where, for example, important documents have now been destroyed or witnesses are no longer available.
• Tribunals are unlikely to allow every late claim to proceed in simple reliance on the Supreme Court’s ruling. They may want to see evidence that the claimant could not reasonably afford the fees at the time and that fees were at least in part the reason they did not make a claim.
• If an individual knew they could have got full Help With Fees and would have had to pay nothing, but still chose not to apply, or even if a tribunal holds that they could reasonably have found out that they would pay nothing, this might make an argument about making a claim now much more difficult.

What should individuals do?

• Act quickly. One factor which tribunals will take into account is whether the claimant acted promptly once there was a change in the law; any delay now could reduce the chance of getting a late claim accepted.
• Complete Acas early conciliation. Before a claim can be issued Acas must have received notification of the intention to make a claim under the early conciliation process. If an early conciliation certificate already exists, the number on that can be used to start the claim. If the original certificate is lost, you can ask Acas to provide it, but they only keep early conciliation records for six months after issue of the certificate. If early conciliation took place more than six months ago you should request a new certificate; whether you want them to contact the employer to attempt conciliation a second time depends on an assessment of whether it might achieve results, but an alternative option is to ask for immediate issue of the certificate.
• The claim should be issued as soon as the early conciliation certificate is received. The claim can be prepared in advance while early conciliation is ongoing. In the ‘details of claim’ box a paragraph should be added with a statement such as: ‘I am aware that my claim is outside the time limit but when my time limit expired I was not able to afford to pay tribunal fees. I started my claim as soon as I heard about the decision in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, and I am asking the tribunal to allow my claim despite it being late.’
• Just because an individual can make a late claim, does not mean they should. First, a weak claim is a weak claim. Claims should be assessed as having a reasonable chance of success since tribunals will examine the merits when deciding whether to extend time. Second, there needs to be a realistic prospect of recovery of any compensation awarded. Some employers will have gone out of business and there is usually no point in suing a respondent with no assets. But where you cannot seek advice on merits quickly, do not delay in issuing the claim for too long. Make sure that the claim at least sets out all of the relevant facts.
• Individuals should gather and organise evidence of income, outgoings and savings, such as bank statements and bills, during the period when the claim was still in time, as this may become relevant when the tribunal is considering whether to allow the late claim.

Withdrawal of a claim because of the hearing fee

If a claim was issued but withdrawn because of inability to pay a hearing fee, it is likely that the tribunal brought the claim to a formal end by dismissing it on withdrawal. ‘Dismissal’ of a claim is technically a tribunal decision; you can ask the tribunal to reconsider and reinstate the claim. Tribunals have the power to change decisions where it is ‘in the interests of justice to do so’. As with late claims, no one knows yet whether applications to reinstate will be allowed, but if the circumstances are such that a tribunal would have allowed a late claim then it is strongly arguable that it would be in the interests of justice to allow reinstatement of a withdrawn claim.

Individuals should write to the tribunal, quoting the tribunal case number, explaining why the case was withdrawn and saying, ‘In the light of the decision in R (on the application of Unison) v Lord Chancellor I am asking the tribunal to reinstate my claim and relist it for hearing’.

As with making a late claim, it is important that the individual does this as quickly as possible.

Where next?

This is a ground-breaking decision with far reaching ramifications for employment rights and access to justice. The specifics of what this means on a practical level will be the subject of many claims; we cannot be certain of the outcomes but we are in new territory. As the Supreme Court said (para 74):

In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

This article was updated on 15 August

Tracey Moss is an Employment Expert at Citizens Advice.