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Chambers & Partners
28/03/2018

Nicola Newbegin and Madeline Stanley successful in Court of Appeal

News

Nicola Newbegin and Madeline Stanley succeed before the Court of Appeal:  ET1 that was missing the relevant particulars of claim was in a form that could sensibly be responded to and was not an abuse of process.

The Court of Appeal has handed down judgment in Secretary of State for Business, Energy and Industrial Strategy v (1) Rhyan Parry (2) The Trustees of Williams Jones School Foundation [2018] EWCA Civ 672.

Nicola Newbegin and Madeline Stanley represented Ms Parry (the Claimant employee) in the Court of Appeal. Please click here to read the judgment.

Background

Solicitors for Ms Parry presented an ET1 to the Employment Tribunal on her behalf. Section 8 of the ET1 form concerns the details of the claim. There are various boxes to be ticked in section 8. The box labelled “I was unfairly dismissed” was ticked as were the boxes indicating the Claimant was owed arrears of pay. The ET1 form referred to attached further particulars, but particulars for an entirely different claim were attached.  The correct particulars of claim were not sent to the ET until after the expiry of the relevant time limit.

The Employment Tribunal made a judicial decision to accept the claim.  However, the school appealed to the EAT arguing that the ET1 was in a form which “cannot sensibly be responded to” (rule 12(1)(b)) and as such should have been rejected.

Employment Appeal Tribunal [2016] ICR 1140

The EAT (Elisabeth Laing J) agreed that the ET1 was not in a form that could sensibly be responded.  However the EAT went on to find that the relevant Employment Tribunal rules were ultra vires, because Rule 12(2) which permitted the ET to reject the ET1 without a hearing amounted to a determination of proceedings which was not permitted by the by the relevant primary legislation, in particular by section 7 of the Employment Tribunals Act 1996.

The EAT’s view was that a decision by an Employment Judge to reject a claim under rule 12(2) is necessarily a judicial decision taken without a hearing. Sections 7(3A) and (3AA) of the Employment Tribunals Act 1996 set out those circumstances in regulations may authorise “the determination of proceedings” without a hearing. The EAT’s view was that a judicial decision under rule 12(2) was a determination of proceedings without a hearing but in circumstances which felt outside those circumstances authorised by sections 7(3A) and (3AA).

This meant that notwithstanding the EAT’s finding that the Respondent school could not have sensibly have responded to the ET1, the Employment Tribunal had had no power to reject the claim.

Court of Appeal

Unusually the Secretary of State, who had not been a party below, appealed to the Court of Appeal on the ultra vires point. The Secretary of State is the author of the Employment Tribunal Rules

The Court of Appeal disagreed with the EAT entirely.

The Court of Appeal was clear that the ET1 had been in a form that could sensibly be responded to and was not an abuse of process and that the ET had not erred in law in not rejecting it.

However, the Court of Appeal agreed with the Secretary of State that the relevant rules were not ultra vires. In particular the Court of Appeal accepted the Secretary of State’s submissions that a rejection by an Employment Judge pursuant to rule 12(2) is not a “determination of proceedings” being “a judicial act of a different quality” and that therefore Sections 7(3A) and 7(3AA) were not relevant.

Comment

Whilst the EAT and Court of Appeal disagreed on whether the claim was in a form that could not sensibly be responded to, both provided useful guidance as to the approach that should be adopted in such a situation.  The EAT accepted that “an EJ should only reject a claim if he is sure that it cannot be sensibly responded to.  If he is in any doubt, he must accept it” (EAT, para 30).  The Court of Appeal (per Bean LJ) held that the school, upon reading Ms Parry’s ET1, would have known perfectly the basis upon which Ms Parry was making her claims, that the school could have put in  a response in the form of a short sentence and that either side could then have been directed to give further details of their case.  Bean LJ commented that “at least proceeding would have been properly launched.  Employment tribunals should do their best not to place artificial barriers in the way of genuine claims”. He did however make clear that this did not amount to “a general rule that a respondent to a claim in an employment tribunal must always be treated, for the purposes of rule 12(1)(b), as having detailed knowledge of everything that has occurred between the parties”.  He pointed out that the position may well be very different in discrimination cases as compared with an unfair dismissal case.

The position in respect of the ultra vires point is more curious.  Whilst the Court of Appeal did not consider that a rejection of proceedings amounted to a determination of proceedings, it was apparently accepted by the Court of appeal that it is still a “judicial act” with potentially significant consequences.  The Court of Appeal did not, however, go on to state which part of the Employment Tribunals Act 1996 did authorise Rule 12(1)(b) read with Rule 12(2). In addition, the Court of Appeal also suggested that Rule 13(4) (providing for a corrected ET1 to be deemed presented as at the date of correction) might be ultra vires but did not take the point further as it was not in issue before the court.

It may be therefore that these issues will need to be resolved in future challenges to the vires of the ET Rules.

Nicola Newbegin and Madeline Stanley appeared for the successful Respondent, Ms Parry. They were instructed by Ms Kehinde Adeogun from the legal department of the National Education Union (Association of Teachers and Lecturers Section).

Key contacts

Nicola Newbegin

Nicola Newbegin 020 7269 0305 Email

Madeline Stanley

Madeline Stanley 020 7269 0305 Email

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