Can an Employment Tribunal reject a claim without a hearing?

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01 Sep 2016

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The case of Trustees of the William Jones’ School Foundation v Parry UKEAT/0088/16, by Amanda Beattie, Regional Litigation Manager, Croner

Employment Tribunals are creatures of law and as such have statutory rules of procedure. Under rule 12(1)(b), an Employment Tribunal has the power to reject a claim if it is in “a form which cannot sensibly be responded to or is otherwise an abuse of process”. This particular rule has been examined by the Employment Appeal Tribunal (“EAT”) recently.

The facts

Ms Parry, via her representative, issued a claim for unlawful deductions from wages and unfair dismissal at the Employment Tribunal using the required ET1 form. This was submitted the day before the deadline to present a claim along with a separate document, which purported to set out the particulars of Ms Parry’s claim. However, the document which was attached was mistakenly from a completely different claim. The Tribunal considered that the claim could not be “sensibly responded to” and therefore referred the claim to an Employment Judge, as provided by rule 12(1)(b). Although the wrong attachment accompanied the ET1 form, the Employment Judge still decided to accept Ms Parry’s claim. Therefore, the Respondent School appealed this decision to the EAT, arguing that under rule 12(2) of the rules of procedure, the Employment Tribunal shall reject a claim which cannot be sensibly responded to, which was applicable in this case.

Employment Appeal Tribunal

Mrs Justice Laing sitting at the EAT heard this case alone, and considered that the only conclusion that could be made with the ET1 form was that the Respondent would have no idea of the grounds of Ms parry’s claims and therefore could not be sensibly responded to. Therefore, under the rules of procedure, the Employment Judge was bound to reject Ms Parry’s claim. However, Mrs Justice Laing raised that the procedure for rejecting claims under rule 12(1)(b) may be outside the scope of the primary legislation which enacted it. As the Employment Tribunals Act 1996 (“the Act”) provides the legislative power to make the rules and regulations for the Employment Tribunals. This power includes that in very narrow circumstances, a Tribunal can make a determination in proceedings without holding a hearing, however Mrs Justice Laing considered that the Act did not provide for a claim to be determined without a hearing in the situation outlined in rule 12(1)(b). Accordingly, Mrs Justice Laing determined that the procedure for rejecting a claim under rule 12(1)(b) was not permitted by the Act nor under any other general power. Therefore, she concluded that the correct procedure for rejecting claims under this rule, would be to use the same procedure as for ‘initial consideration’ of claims under rule 27. This is a process which allows a party to make written representations within a specified time period and if these are received, an Employment Tribunal can either permit the claim or list a hearing which has the purpose of deciding whether the claim should be permitted. Therefore Mrs Justice Laing concluded that the Employment Tribunal Judge had erred in deciding that the ET1 form could be sensibly responded to. However in this instance there was no power to reject the claim under rule 12, as it was outside the scope of the Act and therefore was ultra vires. Consequently, it was decided that the appeal against the Employment Judge’s decision not to reject the claim must be dismissed. There is reasonable speculation now that claims could also not be rejected under rule 12 if the circumstances outlined in rule 12(1)(d-f) apply, which all relate to whether the Claimant has complied with the now mandatory Early Conciliation process with ACAS.

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