Practical Law

A recent decision of the EAT has removed entirely the ability under the Employment Tribunal Rules for an employment judge to reject an ET1 that cannot sensibly be responded to before a respondent is required to file an ET3. Where does that leave respondents?

The Rules

Rule 12(1) of the Employment Tribunal Rules provides that, following the presentation of an ET1, an Employment Judge must reject a claim if they consider that:

• The claim is one which the Tribunal has no jurisdiction to consider.
• The ACAS early conciliation requirements have not been complied with; or
• It is “in a form which cannot sensibly be responded to or is otherwise an abuse of the process.” (Rule 12(1)(b)).

The EAT’s decision

In William Jones School v Parry UKEAT/0088/16 (handed down on 2 August 2016), the EAT (Laing J) considered a case where a claim form had been submitted with the boxes for unfair dismissal and arrears of pay ticked, but in the details of claim section the claimant’s solicitors had attached a rider that related to an entirely different case. The employment tribunal staff referred the claim form to an employment judge who did not reject the claim. Unsurprisingly, the EAT had “no hesitation in holding that no reasonable EJ properly directing himself in law could have concluded that an ET1 in this form could sensibly be responded to.” Accordingly, the claim should have been rejected under Rule 12(1)(b).

However, the EAT went on to perform a careful analysis of the powers granted by the Employment Tribunals Act 1996 (the primary legislation which gives the Secretary of State power to do certain things by way of secondary legislation) against the provisions of the Employment Tribunal Rules (implemented by way of secondary legislation, through the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013). Those (like me) who are interested in the fine detail of such black letter law will enjoy reading the analysis in the EAT’s decision itself, but suffice it to say for present purposes that the EAT concluded that:

• The primary legislation permits a claim to be rejected without hearing from the parties if, for example, it relates to a claim which the tribunal has no jurisdiction to consider.
• Here, it was clear (from the fact that the boxes for unfair dismissal and arrears of pay were ticked) that the claimant was seeking to bring claims over which the tribunal did have jurisdiction.
• The primary legislation does not permit claims to be rejected without hearing from the parties because it is in a form which cannot sensibly be responded to.
• Accordingly, Rule 12(1)(b) is ultra vires because it is not authorised by statute.

The consequence of this is that Rule 12(1)(b) of the Employment Tribunal Rules ceases to have any effect, and an employment judge cannot reject a claim form which purports to relate to a claim over which the tribunal has jurisdiction, even if it is in a form that the respondent cannot sensibly respond to.

Where does that leave respondents?

In Jones the EAT held that the drastic interference with a claimant’s rights consequent upon a dismissal of a claim without hearing from the parties is not problematic in the context of the sift stage under Rule 27 of the Employment Tribunal Rules, and that the sift “is the correct procedure for enforcing compliance with the requirements imposed by Rule 12”.

Rule 27 of the Employment Tribunal Rules provides for initial consideration by a judge after both the ET1 and the ET3 have been filed. If, on such consideration, an employment judge concludes that a claim or part of it has no reasonable prospects of success, the judge must send a notice to the parties setting out his reasons, and ordering that the claims will be dismissed on a specified date unless the claimant has presented written reasons explaining why it should not be dismissed. If written submissions are received, then the claim must either be allowed to proceed, or a hearing fixed to decide whether it should be permitted to proceed.

Since such initial consideration can only take place after a response from the respondent has been accepted, respondents are going to have to file responses even to claims which cannot sensibly be responded to. In Jones the EAT accepted that the only way that the respondent could respond to the ET1 would be to say “I deny/accept that the Claimant was unfairly dismissed and is owed arrears of pay”.

In practice:

• Respondents will simply have to make such bald denials, which in my view should be accompanied by:
  • An express statement that the claim is in a form which cannot sensibly be responded to and/or is an abuse of process; and
  • A request that the tribunal follow the procedure in Rule 27.

• This decision is unhelpful to respondents, because no doubt most claimants faced with a notice under Rule 27 will seek to provide further/better particulars of their claims, making dismissal of the claim less likely. Such further particulars will technically require permission to amend the claim, but at such an early stage permission will often be granted.
• It is to be hoped that the Rules will be amended, both to remove the (now otiose) Rule 12(1)(b), and to enable an employment judge to deploy the Rule 27 procedure in respect of a claim which cannot sensibly be responded to before a respondent is required to respond to any claim.