In Trustees of the William Jones’s Schools Foundation v Parry (02.08.16, UKEAT/0088/16/JOJ), the EAT has held that the procedure in Rule 12(1)(b) of the 2013 Employment Tribunals Rules of Procedure – whereby an Employment Judge is required to reject a claim form that “cannot sensibly be responded to” – is ultra vires.
The salient facts were that the claimant’s solicitor had lodged a claim form on behalf of the claimant shortly before the expiry of the limitation period. However, the form itself did not contain any particulars of the claimant’s claim, and the attached rider document purporting to contain those particulars, in fact related to an entirely different case. The tribunal office referred the claim to an Employment Judge under Rule 12, who decided not to reject the claim despite the absence of any particulars. The respondent remained unaware that this had taken place until another Employment Judge disclosed what had occurred at a Preliminary Hearing. That second Employment Judge was asked to “reconsider” the first Judge’s decision under rules 70-73, but he refused, on the grounds that the first Judge’s decision did not constitute a “judgment” as defined in rule 1.
The respondent appealed against the decision not to reject the claim on grounds of perversity, and against the decision to refuse a reconsideration on the grounds that the judicial decision not to reject the claim form was indeed a “judgment” within the meaning of rule 1(3)(b)(ii).
Mrs Justice Laing DBE would have allowed both appeals. In the process of reaching that conclusion she agreed with Douglas (albeit obiter) that a line of cases starting with Burns International v Butt  IRLR 438 – to the effect that the Rules of Procedure cannot “cut down” on the jurisdiction afforded by the Acts of Parliament creating statutory causes of action such that it is sufficient for an ET1 merely to indicate the relevant cause of action – had been wrongly decided. This was because they had ignored the fact that the rules of procedure themselves have always been created pursuant to statutory authority which requires tribunal claims to be instituted in accordance with rules of procedure.
However, she raised of her own motion the question of whether that statutory authority – in the form of s.7 Employment Tribunals Act 1996 – was wide enough to allow for the procedure created by the government in rule 12(1)(b). She concluded that it was not. As a result, she had no choice but to dismiss the appeals, since the first judge’s error of law was not to comply with a rule for which there was no authority, and was therefore immaterial. The only legitimate basis for tribunals to reject claims under rule 12 now, is where the claim is not in respect of a matter the tribunal has jurisdiction to deal with (rule 12(1)(a)).
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