Am I too late to make a claim to the Employment Tribunal?
You will have seen our article last week informing you that following a Supreme Court decision, Employment Tribunal fees are unlawful and have been abolished with immediate effect. A consultation has been launched to consider what the future looks like for Employment Tribunal claims and whether fees in some form are appropriate. However for the time being, there are no fees for an employee to pay to enforce their rights in the Employment Tribunal.
Since 2013 it has cost employees up to #1,200 to proceed with a claim to the Employment Tribunal (in the more complex claims e.g. unfair dismissal or discrimination). This led to a drastic reduction in claims reaching the Tribunal, partly due to fees being payable at the exact time that an employee had perhaps lost their job and their finances had taken a hit. There was a successful argument in the Courts that this amounted to a restriction on access to justice.
Since the Supreme Court decision there has been some suggestion by employment law commentators that employees who did not bring a claim between 2013 and 2017 solely because of the fees could now lodge a claim out of time and argue that it should be heard. It is unlikely that a Tribunal would make a finding on this until a test case has been run, potentially through the whole Court system. However, if an employee wants to make such a claim they would be advised to lodge this as soon as possible.
For most Employment Tribunal claims, an employee would have three months less one day from the date of the incident they complain of (e.g. a dismissal or a discriminatory act) to lodge their case with ACAS for Early Conciliation and then around a month from the end of Early Conciliation to commence a claim in the Employment Tribunal.
Generally, if an employee misses this deadline then they are out of time and the Tribunal does not have jurisdiction to hear their case. However an Employment Tribunal Judge can accept a late claim in limited circumstances.
For example, in a claim of Unfair Dismissal, a late claim can be permitted if it was not reasonably practicable to lodge their claim sooner and that as soon as it was reasonably practicable for them to lodge their claim they did so. In the context of Employment Tribunal fees, if an individual could show that their finances at the time of their original deadline (and since this time) were such that they would not be able to afford the Tribunal fee and would not otherwise have qualified for a remission for help with those fees, then a late claim could be permitted.
In a claim of discrimination, a late claim can be permitted it was just and equitable to allow it to proceed. This is a much wider test and is thus easier to satisfy. Again, in the context of Tribunal fees, similar arguments and evidence would need to be shown i.e. that at the time of your original deadline you could not afford the fees and haven’t been able to since.
If you are wanting to pursue a late claim, then our advice would be to lodge your claim against your former employer through ACAS for Early Conciliation as a matter of urgency as this crystallises the date of your claim.
We invite you to seek expert advice from our approachable and successful Employment department who for an agreed fixed fee can meet with you, assess your paperwork and advise you on the merits of pursuing a claim and the chances of a late claim being accepted.
Our expert team are here to help.
Telephone:- 0114 249 66 66