Employment lawyers were recently surprised by the Employment Appeal Tribunal (EAT) decision in William Jones School v Parry which means that Employment Tribunals must now accept defective claim forms.
The Law
Employment Tribunal claims are governed by the Employment Tribunal Rules of Procedure 2013 (the Rules). Rule 12(1) of the Rules says that Employment Judges must reject a claim (submitted via a form called an ET1) on a number of specified grounds. For the purposes of this article, the relevant ground is that an ET1 must be rejected if it is in a form “which cannot sensibly be responded to or is otherwise an abuse of the process.” The rationale behind this ground is obvious; an employer cannot properly respond to an ET1 (via a form called an ET3) if the ET1 does not makes sense or contain sufficient information.
William Jones School v Parry
In this case the ET1 had been submitted with the boxes for unfair dismissal and arrears of pay ticked. The details of claim in support of those claims however referred to a completely different case. This was because the claimant’s solicitors had attached details relating to another claim in error. The ET1 was referred to an employment judge who decided not to reject the claim. Unsurprisingly, the respondent appealed this decision to the EAT, arguing that the Tribunal had no option but to dismiss the claim in these circumstances because it could not have been sensibly responded to.
The EAT decision
The EAT carried out an in-depth review of the relevant legislation and concluded that a Tribunal can reject a claim without a hearing if that claim is one which the Tribunal does not have jurisdiction to consider. That situation did obviously not apply to the commonplace claims of unfair dismissal and arrears of pay (which are included as options within the ET1).
Conversely, the EAT held that it must follow that a Tribunal cannot reject a claim without a hearing if it is one that the Tribunal does have jurisdiction to consider, regardless of whether it can sensibly be responded to or not.
The alternative procedure
The EAT held that in these circumstances the correct approach would be for the Tribunal to apply the ‘sift approach’ under Rule 27 of the Rules.
Rule 27 of the Employment Tribunal Rules provides that an employment judge shall review the claim after both the ET1 and ET3 have been submitted. Following that review, if an employment judge considers that a claim (or part of it) has no reasonable prospects of success, that judge must send a notice to the parties setting out his reasons, and ordering that the claim/s will be dismissed on a unless the claimant has provided the Tribunal with written reasons in support of why the claim/s should not be dismissed. Once written submissions are received, the claim must either proceed, or the Tribunal should hold a hearing to listen to both parties’ arguments and then decide whether it should proceed or not.
Comment
It would now appear that claimants can submit an ET1 which provides no details in relation to their claim, provided that the claim is one which the Tribunal has jurisdiction to hear (such as unfair dismissal etc). This could be helpful to a claimant who is close to being out of time in relation to the date by which their ET1 must be submitted. In those circumstances a claimant should be able to rely on the fact that the Tribunal can only invoke the Rule 27 procedure and he can then justify his claim at a later stage. If the claim is allowed following the Rule 27 process, a claimant will probably have to apply for permission to amend his claim. However, if that claim has been allowed to proceed following written representations in support, it is extremely unlikely that a Tribunal would then refuse permission to amend on the grounds set out in those written representations.
This decision is less helpful for employers however who will be faced with little choice but to simply respond with bare denials to the claims whilst also suggesting that the Rule 27 procedure should be adopted.
Our view is that an ET1 should always contain full details in support of the claim but it is reassuring to know that if time is short (or you provide the wrong details with the ET1!), you still get a second bite of the cherry.
Our employment solicitors work in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this article or any other HR issue call 01726 74433 or employment@stephens-scown.co.uk.