The Employment Tribunals Rules of Procedure 2013 contained in Schedule 1 of the Employment Tribunals (Constitutions and Rules of Procedure) Regulations 2013 (“the ET Rules 2013”) have been with us for 2 ½ years. They were introduced after a review conducted under the leadership of Underhill LJ and aimed, among other things, i) to put the tribunal’s procedural rules in more user-friendly language, ii) to accommodate the legislative changes in respect of early conciliation and fees, and iii) to introduce a means of weeding out unmeritorious claims early. This article seeks to examine the case law that has emerged from the EAT on the Rules.
Before looking at the case law, a quick word on the primary resources on procedural matters. There are, of course, the ET Rules 2013 themselves, but additionally there have been a number of Presidential Practice Directions and Guidance.
- Employment Tribunals (England and Wales) Presidential Practice Direction – Presentation of Claims (2013)
- Employment Tribunals (England and Wales) Presidential Guidance – Rule 21 Judgment (2013)
- Employment Tribunals (England and Wales) Presidential Guidance – Seeking a postponement of a hearing (2013)
- Employment Tribunals (England and Wales) Presidential Guidance – General case management (2014)
The last of these is probably the most useful, containing, as it does, 20 or so pages of guidance on most of the procedural issues a practitioner will face.
Striking out (r. 37) the overriding objective (r. 2)
In Harris v Academies Enterprise Trust  IRLR 208 the Respondent’s solicitors failed to exchange statements in breach of an ordinary case management order (not an unless order). The Employment Judge (“EJ”) found the delay “intentional and contumelious” but declined to exercise his discretion to strike out the response under r. 37. The Claimant appealed, and argued before the EAT that the EJ applied the wrong test and that tribunals should now apply the unforgiving Mitchell test that applies in the civil courts.
The EAT rejected this argument. While the overriding objective at r. 2 ET Rules 2013 is similar in form to that in the Civil Procedure Rules (Rule 1.1(2) ), it is not identical. There is no reference to dealing with cases “justly and at proportionate cost” or “allotting to [a case] an appropriate share of the court’s resources while taking into account the need to allot resources to other cases, and enforcing compliance with rules, practice directions and orders”. ETs are not therefore obliged to apply the Mitchell test.
Langstaff P did, however, observe that ET should give regard to what cases like Mitchell had to say about what constitutes justice, and that cost is a relevant consideration as is the need to ensure that other cases are not deprived of their fair share of the tribunal’s resources. Interestingly, while holding that the stern Mitchell test did not apply, he did state (at paragraph 40) “Tribunal Judges are entitled to take a stricter line that they may have taken previously, but it remains a matter to be assessed from within the existing Rules and the principles in existing cases”.
Reconsiderations (rr. 70-73)
In Outasight VB Ltd v Brown UKEAT/0253/14/LA a Claimant lost his claim of wrongful dismissal and breach of contract but sought a reconsideration under r. 70 on the basis that he had new evidence showing that the Respondent’s managing director, who had been the only witness at trial, had previously been convicted of fraud and sentenced to 5 years imprisonment. The EJ considered that the case had been finely balanced and had hinged on credibility. He further took the view that he had a broader discretion under r. 70 of the ET Rules 2013 than had been available under r. 34 of the ET Rules 2004, and he revoked his judgment.
The employer appealed and its appeal was allowed. R. 34 of the old ET Rules 2004 contained 5 different grounds for applying for a “review” of a decision, one of which related to new evidence being available, and one (a residual ground) related to the interests of justice. R. 70 of the ET Rules 2013 contained just one ground for “reconsideration”, namely where “the interests of justice require such a review”. The EAT held that the specified grounds under the 2004 Rules were arguably redundant as any application for a review would have to take into account the interests of justice. There was no broader discretion under r. 70 of the ET Rules 2013 – the tests are no different.
Rejection of cases under the initial sift (r. 10, r. 11, r. 12)
The ET now has power to reject claims on an initial sift.
- R. 10 concerns failures by the Claimant to use the prescribed form and failure to provide minimum information and obliges the ET staff to reject a claim with a notice informing the Claimant how to apply for a reconsideration of the rejection under r. 13.
- R. 11 applies in situations where the appropriate fee has not been paid or the relevant remission application made. If some or all of the fee has not been paid the ET will send the Claimant a notice specifying a date for payment of the fee. If the fee is not paid by that date the claim is rejected. There is no right to apply for a reconsideration of this rejection.
- R. 12 deals with substantive defects in the form. If it appears to tribunal staff that there are certain defects (set out within the rule) then they can refer the matter to an EJ who must reject the claim if s/he considers those defects to be present. The notice of rejection informs the claimant of the defect and notifies them of their right to apply for a reconsideration under r. 13.
Sterling v United Learning Trust UKEAT/0439/14/DM concerned r. 10 which obliges a tribunal to reject a claim for failure to supply minimum information. In this case the Claimant had failed to set out in full her early conciliation number when she presented her ET1 4 days before the expiry of the time limit. The tribunal rejected her claim sending notice of rejection to the wrong address. By the time she received the notice and resubmitted the claim, the time limit for presenting her claim expired. The ET held her claim to be out of time.
The Claimant ran different arguments at appeal to the EAT than she ran below, but in this case the EAT observed that r. 10 envisaged that minor defects could be rectified by an application for a reconsideration of the rejection of the claim under r. 13. It is important to bear in mind that under r. 13 for time purposes the claim will be considered presented on the date it was rectified. This case emphasises the importance of filling out an ET1 correctly, and highlights the risks of leaving the presentation of a claim to the last minute.
Deangate v Hatley UKEAT/0389/14/DM concerned r. 11 which obliges a tribunal to reject claims if fees are not paid or applications for remission not made. In this case the Claimants presented their claims online ticking the box that stated that they intended to apply for fee remission. They sent their fee remission applications to the tribunal within 7 days. The Respondent argued that their claims should have been rejected as r. 11 obliges a tribunal to reject a claim “if it is not accompanied by a Tribunal fee or a remission application”.
The ET rejected this argument as did the EAT although for different reasons. The EAT held that ticking the box indicating an intention to apply for fee remission was in of itself an application, albeit one that would be followed by the supply of information.
Cranwell v Cullen UKEATPAS/0046/14/SM was about r. 12 which obliges an employment judge to reject claims for certain substantive defects. The Claimant had made very serious allegations of sexual harassment against her employer and did not wish to have any contact with him. Perhaps for this reason she ticked the box on her ET1 indicating that one of the early exemptions applied (when in fact it did not). The claim was rejected.
The EAT had considerable sympathy for the Claimant, but held that the requirement on the tribunal to reject claims for this particular defect was absolute and could not be waived or varied. Langstaff P pointed out that the early conciliation provisions do not actually oblige a party to have contact with the other party, and that in situations such as this the proper approach would be to contact ACAS but indicate that there is a good reason not actually to go through with any conciliation.
Higgins v The Home Office UKEAT/0296/14/LA again was a case about r. 12, and in particular its interplay with r. 27. The Claimant had a long history of mental ill-health. She issued a poorly drafted claim in which a complaint of unfair dismissal was just about detectable. It was, however, presented 6 years after the end of the employment relationship. Tribunal staff referred the claim to an employment judge who dismissed the claim under r. 12 as an abuse of process for, among other reason, being so substantially out of time.
On appeal the EAT contrasted r. 12, under which an employment judge would reject a claim on the initial sift with no recourse to the Claimant, with r. 27. Under r. 27 an employment judge on an initial consideration of the papers, if he or she is of the view that the tribunal has no jurisdiction to consider the claim (or part of the claim), or that the claim (or part of the claim) has no reasonable prospects of success, he or she can send the Claimant a notice setting out that view and inviting submissions. There is even scope under r. 27 for there to be a hearing.
The EAT held that the employment judge had been wrong to reject the claim as an abuse of process under r. 12. The mere fact that the claim was out of time (albeit very substantially) did not of itself amount to an abuse as it was always open to the Claimant to apply to extend time.