Employment Law Speed Read – 07/05/19

Facts

The Respondent, Jewish Care, is a health and social care charity which caters for the Jewish community. The Claimant, Mr Wray, was employed by the Respondent as a chef. The Claimant’s employment was terminated on 6 March 2017 by reason of misconduct. At this time the ET fee regime was in place and therefore the Claimant would have been required to pay an issue fee of £250 in order to lodge a claim for unfair dismissal. The deadline for making a claim was 5 June 2017. However, the Claimant did not do so and instead lodged his claim on 7 September 2017.

The Claimant had received legal advice from Citizens Advice Bureau (‘CAB’) around June/July 2017 in relation to his claim.

On 26 July 2017 the Supreme Court in R (on the application of Unison v Lord Chancellor [2017] abolished the requirement for lodging and hearing fees in the ET.

Mr Wray claimed that it was not reasonably practicable for him to bring the claim in time because he only became aware of the abolition of the tribunal fees in early August 2017 and prior to this he did not have the funds to pay the £250 fee.

Employment Tribunal

The Judge stated that it has long been established that the burden of proof rests on the Claimant to show that it was not reasonably practicable to present a claim in time.

The Judge decided that the Claimant had not discharged the burden of proof, both because there was information available to him through his advice from CAB and ACAS and also, because the Claimant did not produce sufficient evidence to prove he did not have enough money to present his claim in time.

The Claimant appealed this decision.

Employment Appeal Tribunal

The EAT held that whilst in some cases (before the abolition of the tribunal fees) the requirement to pay £250 to lodge a claim may render it not reasonably practicable for a Claimant to present a claim in time, each case must be considered on its own facts.

The EAT dismissed the Claimant’s argument that the fee regime served as a material factor in making it not reasonably practicable to bring a claim in time, stating that ‘adopting that argument… would result in it not being reasonably practicable for a millionaire to present a claim in time’.

The EAT upheld the ET Judge’s finding that the Claimant had access to advice and therefore should have been aware of the time limits. The EAT also upheld the ET Judge’s finding that there was not enough evidence to prove that the Claimant could not afford the fee, and the appeal was dismissed.

Comment

This case is a reminder that inability to pay the now abolished tribunal fees may be a good reason, in some cases, for a tribunal to allow an application for an extension of time. However, each case turns on its facts, and successful Claimants are required to demonstrate both that the existence of fees prevented them from lodging a claim, and that they acted quickly in doing so once this barrier was removed.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.