Pre-fee regime employment claims may yet succeed

Last month it was announced that the Supreme Court abolished Fees Order for claims or appeals in the Employment Tribunal or Employment Appeal Tribunal.

Individuals who were prevented or deterred from bringing claims because of the Fees Order, as well as claimants whose claims were rejected or dismissed due to non-payment of fees, are likely to believe that their potential claim is time-barred and can no longer be pursued, according to BTO Solicitors.

However, while such claims are likely to be time-barred, there may be scope for arguing they should now be allowed to be submitted late, if it can be shown that the reason they were not brought in-time was because of the fees regime.

A case management order was recently issued by the Employment Tribunal (Scotland) stating that all claims or applications brought in the Employment Tribunal in Scotland shall be delayed to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunal Service (HMCTS) in relation to the implications of recent cases.

Lesley Grant, senior solicitor in the employment law team at BTO Solicitors, said: “This means that individuals who believe that they may have a valid claim but were denied access to justice as a result of the fees regime should act quickly if they want to explore whether or not they should now bring their proceedings late.

“This is an evolving issue and future decisions of the Ministry of Justice and HMCTS could result in individuals being able to pursue what they believed to be “lost chance” litigation.”