Trustees of William Jones’ Schools Foundation v Ms R Parry
| Jurisdiction | England & Wales |
| Neutral Citation | [2018] EWCA Civ 672 |
| Date | 2018 |
| Court | Court of Appeal (Civil Division) |
Industrial relations - Employment tribunals - Claim - Claim form stating claim but failing to provide any details - Rule requiring claim to be rejected if not able to “sensibly be responded to” - Whether claim to be rejected - Whether rejection “determination of proceedings” without hearing - Whether rule authorised by primary legislation -
The claimant presented an ET1 claim form to an employment tribunal, claiming unfair dismissal and arrears of wages against the respondent school. In response to a box on the form headed “Please set out the background and details of your claim in the space below”, the claimant stated: “Please see attached”. The claimant’s solicitors attached a separate document to the ET1 which gave the particulars of a different case. An employment judge decided not to reject the claim and the employment tribunal subsequently sent out notice of a claim. The school, on receiving the ET1, asked the tribunal to reject the claim as being in a form which could not “sensibly be responded to”, in accordance with rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013F1. Rejecting that request, a second employment judge held that under rule 13 of the 2013 Rules an application for reconsideration was only available to a claimant, not to a respondent. Dismissing an appeal by the school, the Employment Appeal Tribunal accepted that the ET1 was not in a form which could sensibly be responded to, for the purposes of rule 12(1)(b), but held that the test in rule 12(1)(b) was not authorised by section 7 of the Employment Tribunals Act 1996F2, pursuant to which the 2013 Rules had been enacted, as it allowed a claim to be rejected without hearing from any party, or after hearing from only one party, in circumstances other than those provided by section 7(3AA) or (3B) of the Act. The Secretary of State for Business, Energy and Industrial Strategy, a non-party to the proceedings, was granted permission to appeal against the appeal tribunal’s decision that rule 12(1)(b) was ultra vires.
On appeals by the school and the Secretary of State—
Held, (1) allowing the Secretary of State’s appeal, that a claimant’s right of access to an employment tribunal could only be curtailed or made subject to conditions so far as authorised by primary legislation; that section 7(3AA) and (3B) of the Employment Tribunals Act 1996 applied to a “determination of proceedings” without a hearing, but the rejection by an employment tribunal of a claim pursuant to rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013 was not a “determination of proceedings”, since it did not go to the substance of the claim or involve a resolution of issues; and that, accordingly, there was nothing in section 7 of the 1996 Act that rendered any of rule 12(1) ultra vires (post, paras 35, 36, 40–42, 48, 49, 50).
(2) Dismissing the school’s appeal, that the appeal tribunal had been wrong to accept that an employment judge, looking at the claimant’s ET1, could only have concluded that the respondent school would have had no idea of the basis on which the claimant was making her claims, since the school knew perfectly well what had happened and that its case was one of a genuine redundancy; that in many unfair dismissal cases there would be a single determinative issue well known to both parties, so that, even if particulars were omitted from the ET1, the employer could sensibly respond; that, in the present case, the school should have filed an ET3 and either side could then have been directed to give further details of their case and proceedings would have been properly launched; and that, accordingly, the test in rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013 was not satisfied and the employment tribunal had not erred in not rejecting the claim (post, paras 30–33, 48–50).
The following cases are referred to in the judgment of Bean LJ:
Burns International Security Services (UK) Ltd v Butt [1983] ICR 547, EAT
George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12; [2008] 1 WLR 1649; [2008] 3 All ER 859, CA
Hogg v Dover College [1990] ICR 39, EAT
R (Unison) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2) [2017] UKSC 51; [2017] ICR 1037; [2017] 3 WLR 409; [2017] 4 All ER 903, SC(E)
Software Box Ltd v Gannon [2016] ICR 148, EAT
The following additional cases were cited in argument:
Akumah v Hackney London Borough Council [2005] UKHL 17; [2005] 1 WLR 985; [2005] 2 All ER 148, HL(E)
Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473, HL(E)
Attorney General v Great Southern and Western Railway Co of Ireland [1925] AC 754, HL(E)
Becker v Home Office [1972] 2 QB 407; [1972] 2 WLR 1193; [1972] 2 All ER 676, CA
Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 WLR 639; [1998] 2 All ER 203, HL(E)
Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, NIRC
Crosbie v Munroe [2003] EWCA Civ 350; [2003] 1 WLR 2033; [2003] 2 All ER 856, CA
Dodd v British Telecommunications plc [1988] ICR 116, EAT
Fairbank v Care Management Group UKEAT/139/12 (unreported) 20 March 2012, EAT
Grimmer v KLM Cityhopper UK [2005] IRLR 596, EAT
Hammond v Haigh Castle & Co Ltd [1973] ICR 148; [1973] 2 All ER 289, NIRC
Hetton Victory Club Ltd v Swainston [1983] ICR 341; [1983] 1 All ER 1179, CA
Higgins v Home Office [2015] ICR D19, EAT
Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295; [1974] 3 WLR 104; [1974] 2 All ER 1128, HL(E)
Kedziora v Servest Group Ltd UKEAT/99/16 (unreported) 22 April 2016, EAT
Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470; [2005] ICR 1293, CA
Nayif v High Commission of Brunei Darussalam [2014] EWCA Civ 1521; [2015] ICR 517; [2015] 4 All ER 159, CA
Richardson v U Mole Ltd [2005] ICR 1664, EAT
Salisbury Independent Living Ltd v Wirral Metropolitan Borough Council [2012] EWCA Civ 84; [2012] PTSR 1221, CA
Ward v Comr of Police of the Metropolis [2005] UKHL 32; [2006] 1 AC 23; [2004] 1 WLR 521; [2005] 2 WLR 1114; [2005] 3 All ER 1013, HL(E)
Young v Hexion Speciality Chemicals UK Ltd UKEATS/23/09 (unreported) 27 October 2009, EAT(Sc)
The following additional cases were referred to in the skeleton arguments:
Ahmed v HM Treasury (JUSTICE intervening) (Nos 1 and 2) [2010] UKSC 5; [2010] 2 AC 534; [2010] 2 WLR 378; [2010] 4 All ER 745; [2010] 4 All ER 829, SC(E)
Attorney General v Barker [2000] 1 FLR 759
Dean v Wiesengrund [1955] 2 QB 120; [1955] 2 WLR 1171; [1955] 2 All ER 432, CA
McFadyen v PB Recovery Ltd UKEATS/72/08 (unreported) 31 July 2009, EAT(Sc)
R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275; [1996] 4 All ER 385, CA
R (Edison First Power Ltd) v Central Valuation Officer [2003] UKHL 20; [2003] 4 All ER 209, HL(E)
R (Public Law Project) v Lord Chancellor (Office of the Children’s Comr intervening) [2016] UKSC 39; [2016] AC 1531; [2016] 3 WLR 387; [2017] 2 All ER 423, SC(E)
Staffordshire County Council v Barber [1996] ICR 379, EAT
APPEAL from the Employment Appeal Tribunal
By an ET1 claim form dated 25 January 2016, the claimant, Rhyan Parry, made claims against the respondents, the Trustees of the William Jones’s Schools Foundation (formerly Haberdashers’ Monmouth College), for unfair dismissal and arrears of wages. In response to a request on the ET1 to set out the details of the claims, the claimant referred to an attached document. The claimant’s solicitors erroneously attached a document relating to a different case. On 28 January 2016 Employment Judge Cadney decided not to reject the claim, and on 29 January 2016 the employment tribunal sent out notice of a claim to the respondents. On 3 February 2016 the respondents received the ET1, and on 4 February their solicitors wrote to the tribunal, asking for the claim to be rejected pursuant to rule 12 of the Employment Tribunals Rules of Procedure 2013, on the ground that it was in a form which could not “sensibly be responded to”. On 8 March Employment Judge Harper refused the request, holding that, under rule 13 of the 2013 Rules, an application for reconsideration was only available to a claimant, not a respondent; and that rules 70–73, dealing with reconsideration of judgments, did not apply, since Employment Judge Cadney’s decision to accept the claim was not a “judgment” as defined in rule 1(3)(b) of the 2013 Rules.
On 2 August 2016 the Employment Appeal Tribunal (Elisabeth Laing J sitting alone) [2016] ICR 1140 dismissed an appeal by the respondents, holding that, although the ET1 was not in a form which could have been sensibly responded to, the test in rule 12(1)(b) was not authorised by primary legislation and was accordingly ultra vires.
By an appellant’s notice dated 31 August 2016, the Secretary of State for the Department for Business, Energy and Industrial Strategy sought permission to appeal the implied declaration that rule 12(1)(b) was ultra vires, and on 31 May 2017 the Court of Appeal (Longmore LJ) granted the Secretary of State permission to appeal.
On 31 July 2018 the Court of Appeal (Underhill LJ) granted the respondents permission to appeal.
The facts are stated in the judgment of Bean LJ, post, paras 1–8.
Mathew Purchase (instructed by
Nicola Newbegin and Madeline Stanley (instructed by
Douglas Leach (instructed by
The court took time for consideration.
28 March 2018. The...
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