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EAT Considers Extension of Time Application Based on Unlawful Fees Regime

As you will be aware the Employment Tribunal fee regime was first introduced in 2013, which ensured Claimants paid both a claim fee and a hearing fee when bringing a claim. Government statistics showed 79% fewer cases were brought over three years following the fee regimes introduction.

Following the publication of the Supreme Court’s judgement in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, the government announced that fee collection would be halted immediately and that the Government would embark on a process of reimbursing all fees paid since 2013.

In Wray v Jewish Care, the Employment Appeal Tribunal (“EAT”) considered whether it should allow Mr Wray’s claims to proceed based on his submissions that the Tribunal should extend the time limit for presenting a claim because it was not “reasonably practicable” for him to submit a claim in time because of the Employment Tribunal fee regime.

Whether it was reasonably practicable for a Claimant to present a claim in time will turn on its own facts. If a Tribunal believes it was not reasonably practicable for the claim to be presented within the time limit then the tribunal must then consider whether the claim was presented “within such further period as the tribunal considers reasonable”.

In this case, the Employment Tribunal found that Mr Wray was of limited means and he did not have good literacy skills. At the date of expiry of the time limit for presentation of the claims the fees regime was still in place and he would have had to pay £250 to lodge his claim. The Employment Judge found as fact that he had consulted and instructed a lawyer at the Citizens Advice Bureaux and was told about the limitation period and, albeit wrongly, that it had expired. Mr Wray delayed from early August 2017 when he learned about the abolition of the fees regime to 9 September 2017 to present his claim. 

In this case, the EAT held that whilst the requirement to pay an initial fee may mean that it was not reasonably practicable to lodge a claim in time each case was to be judged on its own facts. One reason for late submission given by Mr Wray was his financial issues, as he explained that the delay in the claim was due to him saving up to pay the Tribunal fees, fees to fund the case and for lawyer’s fees. Following this, no evidence in regards to his financial situation was presented in front of the Employment Tribunal. Although, statements from his bank account was introduced to the EAT, these highlighted that he was near or over his overdraft at that specific time. Despite evidencing his bank statements the EAT held that this does not give a complete picture of the resources available to Mr Wray and it was overwhelmingly unlikely to have affected the conclusion of the original Employment Tribunal. The EAT rejected an argument that the mere existence of the fees regime made it not reasonably practicable for Mr Wray to issue his claim in time.

In the current matter, the Claimant delayed from early August 2017 when he learned about the abolition of the fees regime to 9 September 2017 to present his claim. Consequently, the EAT, therefore, held that even if it was not reasonably practicable to present the claim in time, the claim was not presented within a reasonable further period.

This case highlights that the reasonably practicable test is significantly subjective to each individual case as there are various factors which could influence the decision of the Employment Tribunal. However, it is unlikely that the mere existence of the fees regime would make it not reasonably practicable. Therefore, if employers face claims which have been brought out of time due to the fee regime it would be beneficial to find out when the Claimant became aware that the fees were abolished as a significant delay is likely to mean the claim won’t be accepted.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.