Makes no sense
Labour & European Law Review Weekly Issue 486 07 September 2016
Claimants are required to fill in all relevant boxes on an ET1 form before submitting a tribunal claim. However, in The Trustees of the William Jones’s Schools Foundation v Parry, the Employment Appeal Tribunal (EAT) held that tribunals cannot reject a claim without a hearing under the Employment Tribunals Rules of Procedure 2013, even if the ET1 “cannot sensibly be responded to”.
Ms Parry presented a claim for unfair dismissal and arrears of wages on 25 January 2016, a day before the deadline expired for the dismissal claim. She filled in all the relevant boxes on her ET1 form except for one in Section 5 asking for the date when her employment ended which was left empty. Instead she ticked the box asking “Is your employment continuing?”
In Section 8 which asked for the details of the claim, she ticked the box indicating that she had been unfairly dismissed. In box 8.2, which asks for details of the claim, her solicitors typed in “Please see attached” and duly submitted a separate document with the ET1. However, the document they attached related to an entirely different case.
An employment judge decided not to reject the claim, and the tribunal sent out notice of the claim to the school, but without the attached document. When the school rang the tribunal on 4 February to ask for the details, the tribunal said it did not have any.
The school argued that, as the claim did not “meet the minimum requirements of a valid claim”, it should be referred to an employment judge as it was in a form “which cannot sensibly be responded to” as per Rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013, and should be rejected. However, a second employment judge said that he did not have the power to reconsider the decision not to reject the claim. The school appealed.
The EAT held that it should have been obvious to the first employment judge that an employer, faced with this ET1, would have no idea of the basis on which the claimant was making either of her claims. There was therefore no way in which the school could sensibly respond other than to say “I deny/accept that the claimant was unfairly dismissed and owed arrears of pay”. As such, no reasonable judge properly directing themselves in law could have concluded that an ET1 in this form could sensibly be responded to.
However, this error was irrelevant as there was only one provision in rule 12 which is authorised by section 7 of the Employment Tribunals Act 1996 allowing proceedings to be determined without a hearing. That is, when the tribunal has no jurisdiction to hear the case. As that did not apply here, the first judge’s error was immaterial. Instead the correct procedure for dealing with issues of compliance with the requirements imposed by Rule 12 which allows a judge to dismiss a claim (or part of a claim) is if they decide it has “no reasonable prospects of success” and follow the procedure set out in Rule 27.
Since the first decision was correct, the appeal against the refusal to reconsider was academic, and was dismissed.