In Trustees of the William Jones’s School Foundation v Parry, the EAT has held that rule 12(1)(b) of the Employment Tribunal Rules 2013 is ultra vires – i.e. outside the scope of the primary legislation under which those Rules are made – in so far as it requires an employment judge to reject a claim without a hearing if he or she considers that it is in a form that cannot ‘sensibly be responded to’ or is otherwise an abuse of process. The EAT suggested that the correct procedure for enforcing compliance with the requirement imposed by rule 12(1)(b) is that set out in rule 27 of the Tribunal Rules, which gives the parties the opportunity to make representations and to then have a hearing before a claim can be dismissed.
S (via her solicitors) submitted an employment tribunal claim form (ET1) in respect of unlawful deduction from wages and unfair dismissal the day before the statutory deadline for presenting the latter claim. The solicitors submitted a separate document with the ET1 purportedly setting out the details of claim. However, they mistakenly attached the details of an entirely different claim. The tribunal accepted that this meant that the claim was in a form which could not ‘sensibly be responded to’ and therefore referred it to an employment judge, as required by rule 12(1)(b) of the Employment Tribunal Rules 2013 (contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237). Notwithstanding the irregularity, the judge decided to accept the claim. The School appealed, pointing out that under rule 12(2) the judge must reject the claim if he considers that it is in a form that cannot sensibly be responded to.
In the EAT, Mrs Justice Laing, sitting alone, considered that the judge had erred in concluding (as he must have done) that the claim could sensibly be responded to. The opposite conclusion was the only one open to him, given that, faced with this ET1, the respondent would have no idea of the basis on which the claimant was making her claims. According to rule 12(1)(b) (coupled with rule 12(2), this meant that the judge was bound to reject the ET1 without more. However, Laing J raised the possibility that the procedure for rejecting claims that fail rule 12(1)(b) might be outside the scope of primary legislation – specifically S.7 of the Employment Tribunals Act 1996 (ETA), which confers on the Secretary of State the power to make employment tribunal proceedings regulations. This includes the power – in very limited circumstances – to make regulations which provide for the employment tribunal to make a determination in proceedings without any hearing – S.7(3A), read with S.7(3AA). Laing J did not consider that the wide power conferred by S.7(1) authorises the Secretary of State to make regulations which provide for a claim to be determined without any hearing in circumstances other than those described in S.7(3AA). The wide power is constrained by S.7(3A) and (3AA), which are an ‘exhaustive statement’ of the circumstances in which the Secretary of State is authorised to make regulations which make the unusual provision that a claim may be determined without any hearing. The drafting of S.7 showed that Parliament appreciated that provisions curtailing the right to a hearing are unusual and wished to provide specific (but limited) authority for such procedures in the employment tribunal.
Laing J therefore concluded that the rejection procedure relying on the test in rule 12(1)(b) is not authorised by S.7 ETA, or by the general power conferred by S.41(4) to ‘make such incidental, supplementary or transitional provision as appears to the Minister exercising the power to be necessary or expedient’. Such a drastic interference with the right to bring a claim could not be characterised as ‘incidental, supplementary or transitional provision’. Laing J went on to note that the correct procedure for enforcing compliance with rule 12(1)(b) would be the ‘initial consideration’ procedure under rule 27. As for the result in the present case, although the employment judge had erred in concluding that the ET1 could sensibly be responded to, there was no power to reject it under rule 12 and so the appeal against his decision not to reject the claim had to be dismissed.
In giving her conclusions, Laing J observed that rule 12(1)(a) – which allows a tribunal to reject a claim without a hearing if the claim is one that the tribunal has no jurisdiction to consider – is ‘the only provision in rule 12 which is authorised by S.7’. By implication, this suggests that the recently-inserted provisions in rule 12(1)(c)-(f), which allow for the rejection of claims that have not been through the early conciliation (EC) procedure, are also ultra vires (assuming that they are also not covered by S.41(4) ETA). If so, this would greatly undermine the enforcement of the EC regime. However, Laing J did not mention the EC provisions at all in her judgment, even in passing, and so she may not have intended her conclusion to extend this far.
Report (c) Thomson Reuters