News - Procedure For Rejecting Claims In the Employment Tribunal Is Ultra Vires

Employment & Discrimination - Nicola Newbegin, Bruno Gil

Nicola Newbegin, of Old Square Chambers, successfully represented the Respondent in the EAT, where it was held that an Employment Tribunal does not have the power to reject a claim without a hearing when it is presented ‘in a form which cannot sensibly be responded to’.
The Trustees of the William Jones’s Schools Foundation v Ms R Parry UKEAT/0088/16/JOJ

Background
The Claimant, Ms Parry, presented a claim in January of 2016. In error, her solicitors attached a Particulars of Claim that related to a different case entirely. The Employment Tribunal Staff, as required by Rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013 (‘the Rules’), referred the claim to an Employment Judge (‘EJ1’), as it was potentially in a form which could not sensibly be responded to.
EJ1 decided not to reject the claim, in spite of the erroneous Particulars of Claim.

At a Preliminary Hearing in March 2016, before a second Employment Judge (‘EJ2’), the Respondent (‘the School’) argued that this decision was wrong and the claim should have been rejected as it could not sensibly be responded, as per Rule 12(1)(b).

EJ2 refused to reconsider EJ1’s decision not to reject the claim. He did so on the basis that reconsideration only applied to a ‘judgment’, not any decision. A judgment, as defined within the Rules, is a decision which finally determines a claim or part of a claim. EJ2 held that EJ1’s decision did not finally determine the claim, but rather allowed it to proceed.

The School appealed the decisions of both EJ1 and EJ2.

The Outcome
In the EAT, after careful analysis of the relevant Statutes, the facts and submissions from both parties, Laing J found that EJ1’s decision not to reject the claim was wrong. Objectively, the School would have had no idea of the basis on which the Claimant was making her claim as the wrong Particulars of Claim had been provided. A reasonable EJ, properly directing himself in law, would have rejected this claim under Rule 12(1)(b).
This, however, then leads on to the question of whether Rule 12(1)(b) is authorised under Statute, namely section 7 of the Employment Tribunals Act 1996 (‘the ETA’). 

S.7(3A) permits the Secretary of State to make regulations to provide that proceedings may be determined without a hearing. It was held, however, that this power is rightly limited, under s.7(3AA), to few specified circumstances as it is an unusual interference, restricting access to justice. Laing J held that Rule 12(1)(b) did not fall within these limited circumstances and, accordingly, the rejection of a claim which cannot sensibly be responded to may not be determined without a hearing.

The net effect was that, even though EJ1 should have rejected the claim, Rule 12(1)(b) is not authorised under the ETA. The claim could not, therefore, have been rejected without a hearing. His error was immaterial. 
Instead, the correct way to deal with a claim which cannot sensibly be responded to is to follow the procedure set out in Rule 27, which includes allowing the Claimant to present written representations for why the claim should not be dismissed and permitting a hearing on the matter, if required.

In light of the finding that Rule 12(1)(b) is ultra vires, the second appeal was said to be academic and EJ2’s decision not to reconsider the matter was incontestably correct. That said, Laing J did briefly turn to address the question of whether the decision under Rule 12 was a ‘judgment’, which could be reconsidered under Rule 70, or a ‘case management order’, which could not.

Laing J identified that ‘the question is whether the decision whether to reject a claim “finally determines any issue which is capable of finally disposing of any claim … even if it does not necessarily do so”. In answer, she found that the decision of whether to reject a claim has the potential to finally dispose of a claim. This remains the case even though a claimant can apply for reconsideration or bring a second claim. Accordingly, it was a ‘judgment’ and EJ2 would have been bound to permit its reconsideration. The School’s appeal would have been allowed. Of course, this part of Liang J’s judgment was obiter and made no difference to the outcome in light of the finding that Rule 12(1)(b) is ultra vires.

For the judgment in The Trustees of the William Jones’s Schools Foundation v Ms R Parry please click here.

By Bruno Gil

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