You will no doubt recall the furore when the Employment Tribunal fees regime was abolished in August 2017, after the Supreme Court found it to be unlawful. At the time, some commentators speculated that employees might try to belatedly file Employment Tribunal claims, arguing that they had previously been prevented from doing so because of the prohibitive cost. The recent case of Wray v Jewish Care has looked at whether this sort of argument is likely to succeed.
Mr Wray was dismissed on 6 March 2017. Having completed the ACAS Early Conciliation process, he had until 18 July 2017 in which to file his Employment Tribunal claim. However, his unfair dismissal and breach of contract claims were not in fact filed until 6 September 2017. He subsequently sought to argue that given his limited financial means, it was not reasonably practicable for him to have presented his claims any earlier, given the fees regime previously in place.
Mr Wray’s claims were rejected both by the Employment Tribunal and the Employment Appeal Tribunal. The EAT was prepared to acknowledge the possibility that the fees regime might have made it reasonably impracticable for an Employment Tribunal claim to be submitted within the normal time limit. However, in the present case, Mr Wray had failed to provide any evidence to show that he actually lacked the money to pay the fee. Nor did he explain the delay between him finding out about the abolition of the fees regime and the subsequent filing of his claim.
What does this mean?
This case is an interesting reminder of the significance of the abolition of the Employment Tribunal fees regime. It also offers some helpful reassurance to employers that the burden of proof will rest with employees to show that (1) they genuinely couldn’t afford the fee AND (2) they filed their claim promptly after the fees regime was abolished.
All in all, it’s reasonable to assume that if you haven’t yet received an Employment Tribunal claim form, you’re probably in the clear!