Springhouse Solicitors

Employment Tribunal Rules are wrong: EAT

The Employment Appeal Tribunal has held that the rule in the Employment Tribunal Rules which obliges Tribunals to reject claims which “cannot sensibly be responded to” is wrong, and should not be applied.

Background

Rule 12(1)(b) of the Employment Tribunal Rules means that claims have to be rejected when they cannot “sensibly be responded to”. This appears to be at odds with the Employment Tribunals Act 1996 which only allows this where there has either been a hearing, or the parties have agreed to it in writing.

In this case, a claim had been submitted by solicitors acting for the Claimant, Ms Parry. However, the solicitors had attached the wrong particulars of complaint. When the claim was allowed to proceed by the Tribunal, the Respondent, Williams Jones’s Schools Foundation, launched an appeal, on the basis that the claim could not “sensibly be responded to” in the form in which it was submitted.

The EAT said that the Tribunal had got it right, but for the wrong reasons. Their reasoning should have been that they had no authority, under the Employment Tribunals Act, to reject the claim without a hearing. Insofar as the Employment Tribunal Rules allowed this, they went beyond their authority, or were “ultra vires”.

Implications

Incomplete or incoherent claims cannot now be rejected without a hearing.

This judgment also calls into question further rules, requiring Tribunals to reject claims where the early conciliation process has not been completed. We expect to see challenges where claims have been rejected for failure to comply with early conciliation without agreement or a hearing.