THE TRUSTEES OF THE WILLIAM JONES’S SCHOOLS FOUNDATION v PARRY UKEAT/0088/16/JOJ

THE TRUSTEES OF THE WILLIAM JONES’S SCHOOLS FOUNDATION v PARRY UKEAT/0088/16/JOJ

Appeal No. UKEAT/0088/16/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 21 July 2016

Judgment handed down on 2 August 2016

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

(SITTING ALONE)

THE TRUSTEES OF THE WILLIAM JONES’S SCHOOLS FOUNDATION              APPELLANT

MS R PARRY                                                                                               RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

 

For the Appellant	MR DOUGLAS LEACH (of Counsel) Instructed by: Veale Wasbrough Vizards Solicitors Narrow Quay House Narrow Quay Bristol BS1 4QA
For the Respondent	MS NICOLA NEWBEGIN (of Counsel) Instructed by: Association of Teachers & Lecturers Legal Services Department 7 Northumberland Street London WC2N 5RD

 

SUMMARY

PRACTICE AND PROCEDURE

PRACTICE AND PROCEDURE – Application/claim

PRACTICE AND PROCEDURE – Review

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

The Appellant appealed against the Decision of the Employment Tribunal (“the ET”) not to reject the Claimant’s claim form under Rule 12(1)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) and against a later Decision of the ET to refuse to reconsider the first Decision.

The Employment Appeal Tribunal held that it had jurisdiction to hear both appeals.  It held that the primary legislation (the Employment Tribunals Act 1996) authorised the requirement contained in Rule 12(1)(b), but does not authorise it to be applied in the course of the procedure provided for by Rule 12.  A different test is authorised to be applied in that procedure.  Accordingly, although the ET’s decision not to reject the ET1 would have been perverse, if the Rule 12(1)(b) test was the correct test, it was a decision the ET was entitled to make, applying the test authorised by statute.

 

Since the first Decision was correct, the appeal against the refusal to reconsider was academic, and was dismissed.  The EAT said that, had the second appeal not been academic, it would have been allowed, as the ET had erred in deciding that the first Decision was not a “Judgment” for the purposes of the Rules.

 

 

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

 

1. This is my decision on two appeals, from two Decisions of the Employment Tribunal (“the ET”). The first Decision is a decision of Employment Judge Cadney on 28 January 2016 not to reject the Claimant’s claim form.  That was a judicial decision.  It was first announced orally to the Respondent by Employment Judge Harper, sitting alone, at a Preliminary Hearing on 8 March 2016 in Cardiff (see the Respondent’s notes of that hearing).  The second Decision is Employment Judge Harper’s decision at that Preliminary Hearing not to reconsider the first Decision.  Written Reasons for the second Decision were sent to the parties on 21 March 2016.

 

2. I will refer to Employment Judge Cadney as “EJ1” and to Employment Judge Harper as “EJ2”. I will refer to the parties as they were below.  The Respondent was represented on this appeal by Mr Leach of counsel and the Claimant by Ms Newbegin of counsel.  I am grateful to both for their helpful written and oral submissions and for the good-humoured way in which they dealt with my questions, in a case which raised two difficult issues.

 

3. Those two issues are:
   1. the scope of the ET’s power to reject a claim and
   2. whether the ET has power, on the application of the Respondent, to reconsider a Decision to not reject a claim.

 

4. Ms Newbegin also submitted, but not forcefully, that the Employment Appeal Tribunal (“the EAT”) had no jurisdiction to consider these appeals.

 

 

The Facts

5. The Claimant presented a claim form (“the ET1”) on 25 January 2016. She claimed unfair dismissal and arrears of wages.  Time for bringing her unfair dismissal claim expired on 26 January 2016.  With one exception, the relevant boxes in the form ET1 were filled in.  In section 5, the box for the date when the employment ended is not filled in, but the box “Is your employment continuing” is ticked.  Section 6 (about earnings and benefits) is blank.  Section 8 is headed “Type and details of claim”.  The box “I was unfairly dismissed” is ticked, as are the boxes “I am owed” and “arrears of pay”.  Box 8.2 is headed:

“Please set out the background and details of your claim in the space below.

The details of your claim should include the date(s) when the event(s) you are complaining about happened.  Please use the blank sheet at the end of the form if needed.”

 

The text which is typed in that box says, “Please see attached”.  Her solicitors submitted a separate document (or rider) with the ET1.  That rider related to a different case entirely (see paragraph 2 of the Decision of EJ2).

 

6. On 27 January the ET staff referred the ET1 to EJ1. On 28 January 2016 he decided not to reject the claim.  The Respondent later tried to find out EJ1’s reasons for not rejecting the ET1.  On 30 March the ET replied to several emails as follows:

“…[EJ1] directs that I write as follows:

I have no specific recollection of the decision made over two months ago.  However my note reads: “Accept.  It may be a Hogg v Dover College type of dismissal.  Ask C to provide full details of the claim.”

 

7. On 29 January 2016 the ET sent out notice of a claim. This said the ET had accepted a claim but did not indicate that any judicial decision to accept the claim had been made.  The Respondent received the ET1 on 3 February 2016.  The ET had sent the ET1 on to the Respondent without the rider.  On 4 February 2016 the Respondent rang the ET.  The ET said that it had no particulars of the claim.  The Respondent’s solicitors wrote to the ET on the same day, asking the ET to reject the claim pursuant to Rule 12 of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”).  The Respondent argued that the claim did not “meet the minimum requirements of a valid claim”.  The claim should be referred to an Employment Judge (“EJ”) as it was in a form “which cannot sensibly be responded to”, and should be rejected.  Also on 4 February 2016, the Claimant’s solicitor, having been contacted by the ET, sent details of her claim to the ET.  As at 5 February 2016 (see the letter of that date) the Claimant’s solicitor was under the impression that the details had been submitted with the ET1.  On that basis, she resisted the Respondent’s application.  There were further exchanges between the parties and the ET.  On 2 March 2016 the Claimant’s solicitor wrote to the ET to say that she would be applying at Preliminary Hearing (“PH”) listed for 8 March to amend her claim, by reference to the details of the claim that were sent to the ET on 4 February 2016.  I read this as a tacit acceptance that the correct details had not been submitted with the ET1 on 26 January 2016.

 

8. From the Respondent’s notes of the hearing of 8 March, it seems that EJ2 told the Respondent that the ET1 had been referred to EJ1 on 28 January and he had made a judicial decision to accept the claim. The Respondent’s counsel argued that the letter of 4 February was an application to reconsider that decision, and asked EJ2 to accept it as such.  There was an exchange during which EJ2 accepted that under Rule 13 of the 2013 Rules an application for reconsideration was only available to a Claimant if the ET1 was rejected.  The Respondent’s counsel argued that Rules 70-73 applied.  EJ2 said that they only applied to a Judgment, and the decision was not a Judgment.  Rule 1(3)(b) was discussed.  The Respondent’s counsel also applied orally for a reconsideration of the EJ1’s Decision.  EJ2 announced his short reasons for refusing to reconsider the decision not to reject the claim.
9. The Written Reasons for the decision set out the short facts. It is not clear from paragraph 4 of the Reasons whether EJ2 accepted that the letter of 4 February 2016 was an application for reconsideration.  The first part of that paragraph reads as a summary of the Respondent’s argument rather than as findings.  EJ2 decided that EJ1’s Decision was not a “Judgment” as defined in Rule 1(3)(b) of the 2013 Rules.  “The decision to accept was not a judgment because it did not finally determine the claim.  Quite the reverse.  It enabled the claim to proceed.”  EJ2 held that he had no power to reconsider the decision to accept the claim.

 

The Law

The Statute

10. Section 128 of the Employment Protection (Consolidation) Act 1978 (“the EPCA”) gave the Secretary of State power by regulation to make provision for the establishment of industrial tribunals to exercise the jurisdiction conferred on them by or under the EPCA (section 128(1)). Section 128(3) enacted Schedule 9 “which makes provision, among other things, with respect to proceedings before industrial tribunals”.  Section 128(4) provided, “Complaints, references, and appeals to industrial tribunals shall be made in accordance with regulations made under paragraph 1 of Schedule 9”.  Paragraph 1 of Schedule 9 gave the Secretary of State power to “make such provision as appears to him to be necessary or expedient with respect to proceedings before industrial tribunals”.

 

11. The EPCA was repealed and replaced by the Employment Rights Act 1996 and by the Employment Tribunals Act 1996 (“the ETA”). By section 2 of the ETA ETs “shall exercise the jurisdiction conferred on them” by various Acts.  Section 7(1) gives the Secretary of State power by regulations to make such provision as appears to him to be necessary or expedient with respect to proceedings before ETs (“the Regulations”).  Section 7(2) requires that proceedings before ETs “shall be instituted in accordance with” the Regulations.  Section 7(1) and (2) echo the provision made by paragraph 1 of Schedule 9 to, and section 128(4) of, the EPCA.

 

12. Section 7 has been amended several times since its enactment. It sets out in some detail the Secretary of State’s powers to make various types of provision in the regulations; see section 7(3)(a)-(j).  By section 7(3ZA) regulations may authorise the Secretary of State to prescribe, or prescribe any requirements in relation to, any form which is required by regulations to bring, or enter an appearance to, a claim.  Section 7(3A) enables regulations to provide that proceedings may be determined without a hearing in such circumstances as the regulations may prescribe.  This is a wide power authorising such provision.  But it was cut down by a later amendment.  Section 7(3AA) provides that regulations under subsection (3A) may only make such provision in specified circumstances.  Those are (i) that all the parties consent in writing to that, or (ii) the Respondent has presented no response, or does not contest the case.  Section 7(3AB) explains that “a person does not present a response in the proceedings if he presents a response but, in accordance with provision made by the regulations, it is not accepted”.

 

13. I reject Mr Leach’s submission that the effect of section 7(3AA) is to authorise the making of regulations which permit, in a general way, the determination of proceedings without any hearing at any time before the Respondent has presented a response to it. I prefer Ms Newbegin’s submission that the effect of section 7(3AA)(b) is to authorise regulations which provide for a claim to be determined without any hearing where, after the time for presenting a response has passed, the Respondent has not presented one.  In other words section 7(3AA)(b) cannot apply before that time has passed, as it is not possible to say that a Respondent has not presented a response until the time limit has expired, and no response has, in fact, been presented by the Respondent.

 

14. Section 7(3B) provides that regulations may authorise the determination of proceedings without hearing anyone other than the Claimant or his representatives where, among other things, it appears from the application made by the Claimant that “he is not … seeking any relief which an Employment Tribunal has power to give or that he is not … entitled to any such relief”.

 

15. Section 7A(A1) enables the Senior President of Tribunals (“the SPT”) to make Practice Directions about procedures in ETs. By section 7A(1) regulations may include provision enabling the SPT to make directions about procedure including directions about the exercise by tribunals of powers under regulations.  By section 7A(2) regulations, instead of specifying a matter, may refer to provision made about that matter in any relevant Practice Direction.  It goes without saying that any such provision must be authorised by section 7 of the ETA.  Section 7A makes detailed provision about Practice Directions.  Section 41(4) provides that any power exercisable by statutory instrument includes a power to make such incidental, supplementary or transitional provision as appears to the Minister to be expedient.

 

16. By section 21(1) of the ETA, an appeal lies to the Employment Appeal Tribunal (“the EAT”) “on any question of law arising from any decision of, or arising in any proceedings before, an [ET] under or by virtue of” various enactments.

 

 

 

The 2013 Regulations

17. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, 2013 SI No 1237 (“the 2013 Regulations”) are the current Regulations made under section 7 of the ETA. The 2013 Regulations make provision about the constitution of ETs.  Regulation 11 gives the President of Employment Tribunals in England and Wales power to make Practice Directions, “including Practice Directions about the exercise by tribunals of powers under these regulations”.  Regulation 12 gives the Secretary of State power to prescribe various forms for use in ET proceedings.  Regulation 13(1), subject to Regulation 13(2), provides that the Rules in Schedule 1 to the 2013 Regulations apply to all proceedings before an ET except where separate Rules of Procedure under an enactment apply.

 

Schedule 1 to the 2013 Regulations (“the 2013 Rules”)

18. The Rules which applied to this case are in Schedule 1 to the 2013 Regulations (“the 2013 Rules”). Rule 1(1) defines “claim” as “any proceedings before an Employment Tribunal making a complaint”, and “complaint” as “anything which is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal”.

 

19. Rule 1(3) provides:

“(3) An order or other decision of the Tribunal is either –

(a) a “case management order”, being an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment; or

(b) a “judgment”, being a decision, made at any stage of the proceedings (but not including a decision under rule 13 or 19), which finally determines –

(i) a claim, or part of a claim, as regards liability, remedy or costs (including preparation time and wasted costs);

(ii) any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue);

(iii) the imposition of a financial penalty under section 12A of the Employment Tribunals Act.”

20. Rule 2 sets out the overriding objective which applies to proceedings in the ET. Rule 6 is headed “Irregularities and non-compliance”.  It provides (with express exceptions, which include Rule 8(1)) that a failure to comply with any provision of the 2013 Rules or with any Order of the ET does not of itself “render void the proceedings or any step taken in the proceedings”.  In the case of any such failing, the ET has power to “take such action as it considers just”.  That action includes waiving or varying “the requirement”.  I agree with Mr Leach’s submission, based on a decision of the former President, Langstaff J (albeit made on an ex parte Rule 3(10) application) that Rule 6 does not enable the ET to circumvent provisions such as Rule 12, which impose a duty on the ET to reject a claim in certain circumstances.  In that decision (Cranwell v Cullen UKEATPAS/0046/14/SM) he said, at paragraph 11:

“To say in one part of the rules “The Tribunal has no option but to do X” and then to read it as subject to the proviso “except where it does not want to” is incoherent”.

 

21. Rule 8 is headed “Presenting the claim”. Rule 8(1) provides that a claim must be started by presenting a completed claim form using a prescribed form in accordance with any Practice Direction made under Regulation 11 which supplements Rule 8.

 

22. Rule 10 is headed “Rejection: form not used or failure to supply minimum information”. Rule 11 is headed “Rejection: absence of tribunal fee or remission application”.  Rule 12 is headed “Rejection: substantive defects”.  Rule 12(1) provides that the staff of the Tribunal must refer a claim form to an EJ if they consider (among other things) that the claim or part of it may be (1) one which the Tribunal has no jurisdiction to consider, or (2) in a form which cannot sensibly be responded to or is otherwise an abuse of the process.  The EJ must reject the claim, or part of it, if he considers that the claim is such a claim (Rule 12(2)).  If the claim is rejected, a notice must be sent to the Claimant giving the EJ’s reasons for rejecting the claim or part of it.  The notice must give information about applying for a reconsideration of the rejection.
23. Rule 13 is headed “Reconsideration of rejection”. It provides that a Claimant whose claim has been rejected can apply for that decision to be reconsidered, either on the basis that the rejection was wrong, or that the notified defect can be rectified.  The Claimant can ask for a hearing.  If the Claimant does not ask for a hearing, or the EJ decides on considering the application to accept the claim in full, the EJ must decide the application for reconsideration without a hearing.  Otherwise the application must be considered at a hearing attended only by the Claimant.  If the EJ decides that the original rejection was correct but that the defect has been rectified, the claim is to be treated as presented on the day the defect was rectified.

 

24. Rule 27 is headed “Dismissal of claim (or part)”. If an EJ considers either that the ET has no jurisdiction to consider the claim or part of it, or that it, or part of it, has no reasonable prospect of success, he must notify the parties of that view and his reasons for it, and order that the claim or part of it be dismissed on a date specified in the notice unless before that date the Claimant makes written representations explaining why it should not be struck out.  If no representations are received the claim is struck out from that date.  Otherwise the EJ must consider the representations, and either decide to let the claim proceed, or fix a hearing, at which the Respondent may attend.

 

25. Before Rule 70 is a general heading “Reconsideration of judgments”. Rule 70 is headed “Principles”.  It gives the ET power on its own initiative, or on the application of a party, to reconsider any Judgment where it is necessary in the interests of justice to do so.  The decision may be confirmed, varied or revoked.  If revoked, it may be re-taken.  Rule 71 is headed “Application”.  It provides that except where it is made in the course of a hearing, an application is to be presented in writing within 14 days of the date on which the written record or other written communication of the original Decision was sent to the parties, or within 14 days of the date when Written Reasons were sent.

 

26. Rule 72 is headed “Process”. Rule 72(1) requires an EJ to consider any application made under Rule 71.  Rule 72 makes provision for the procedure to be followed.  That procedure applies mutatis mutandis if the ET decides to reconsider a decision of its own motion.

 

Discussion

27. The main issues are whether EJ1 erred in law in deciding not to reject the claim (or part of it), and, if it arises, whether EJ2 erred in law in refusing to reconsider EJ1’s Decision on the grounds that Rule 71 only applies to a Judgment and EJ1’s Decision was not “a Judgment” for the purposes of Rules 70 and following. The first issue, logically, is whether the EAT has jurisdiction to entertain the appeals.

 

Jurisdiction

28. It is clear to me that both appeals raise questions of law “arising from any decision of, or arising in any proceedings before” an ET. “Decision” is not defined in the ETA and I reject the submission, if made, that it must somehow be interpreted consistently with the definition of “Judgment” in the 2013 Rules.  It is obvious that a term used in primary legislation cannot be defined by referring to secondary legislation, leaving aside the point that the word which is defined in the 2013 Rules is “Judgment”, not “Decision”.  Be that as it may, the questions of law in this case incontestably arose in proceedings before the ET.  The authorities on which Ms Newbegin relied for this part of her argument either ignore the principle about interpretation to which I have just referred, or ignore the second limb of section 21(1).  In the best traditions of the Bar, Ms Newbegin also drew my attention to the decision in HMRC v Paw UKEATPA/ 0703/11DA.  Those were appeals against Orders of the Registrar; the Appellant appeared in person and it does not seem as though the Respondent was represented.  Nonetheless, HHJ McMullen QC reached a similar conclusion to that which I have just expressed.

 

Did EJ1 err in law in deciding not to reject the claim?

29. The question under Rule 12(1)(b) of the 2013 Rules is whether the EJ was entitled to conclude that the ET1 (p21) was in a form which could sensibly be responded to or was not otherwise an abuse of process. I have already described the ET1 which was presented.  As I have said, the “attached” rider which the Claimant’s solicitor sent to the ET, but which the ET did not send to the Respondent, related to a different case.  Rule 12(1)(b) does not refer to the Respondent’s subjective knowledge about the underlying facts.  This is sensible, as the EJ to whom a claim form is referred will, obviously, have no means of knowing anything about the claim apart from what he can gather from the ET1.  The test in Rule 12(1)(b) is an objective one.  It is whether the claim is expressed in such a way as to enable the Respondent sensibly, or reasonably, to respond, or to plead, to it.

 

30. The necessary inference from EJ1’s refusal to reject of the claim is that he considered that the ET1 could “sensibly be responded to”. Mr Leach rightly accepts that on an appeal on a point of law, he can only challenge that refusal if it was “perverse” (in the technical sense).  I accept Ms Newbegin’s submission 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.

 

31. An EJ looking at this ET1 could only have concluded that a Respondent faced with this ET1 would have had no idea of the basis on which the Claimant was making either of her claims, and that there was no way in which the Respondent in this case could sensibly respond, other than to say “I deny/accept that the Claimant was unfairly dismissed and is owed arrears of pay”. Mr Leach relies on the tentative observations of Slade J in Fairbank v Care Management Group UKEAT/0139/12/JOJ at paragraph 13 as explaining what sort of details should be in an ET1.  I accept, as Ms Newbegin submitted, they were made in the different context of a claim alleging discrimination on grounds of race.  I reject her submission that that difference of context makes these observations irrelevant.  They are of some analogical help.  I have no hesitation in holding that no reasonable EJ properly directing himself in law could have concluded that an ET1 in this form could sensibly be responded to.

 

32. Before I leave this aspect of the argument, I must deal with various submissions made by Ms Newbegin, based on earlier authorities (for example Burns International Security v Butt [1983] IRLR 438), and on earlier iterations of the procedure Rules, about the basic minimum which an ET1 should contain, and the consequences of a failure to comply with any minimum requirements. The extent to which those authorities can help me is much limited by two factors.  First, they concern the construction of different words in different procedure Rules.  Second, and more importantly, they are based on the misapprehension that a failure to comply with a prescriptive procedure Rule made in delegated legislation cannot take away a right to make a claim which is conferred by primary legislation.  At any rate since the EPCA, the primary legislation has provided that claims must be “made”, or “instituted” in accordance with procedure regulations.  These provisions provide statutory authority for Rules which derogate from the statutory right to bring a claim if that claim is not “made” or “instituted”, as the case may be, in accordance with procedure Rules.  The cases on which she relied do not refer to section 128 of the EPCA or to section 7(2) of the ETA, as the case may be.  I accept Mr Leach’s submission that section 7(2) is highly significant.
33. Ms Newbegin also submitted that section 7(2) is not referred to in the preamble to the 2013 Regulations, and therefore is not one of the provisions which authorises the making of the 2013 Regulations. This submission misses the point.  Mr Leach relies on section 7(2) not as authorising the making of the 2013 Regulations, but as showing (broadly) Parliament’s intention that regulations might cut down the otherwise unfettered statutory right to make various types of claims, enforcing various rights, to the ET.  This is the point which was overlooked in the earlier cases.  The making of procedure regulations such as the 2013 Regulations, and their content, are authorised by the other statutory provisions including the other subsections of section 7 which are recited in the preamble to, for example, the 2013 Regulations.  What is authorised by section 7(2) is something different: that is, the potential effect of the provisions in procedure regulations on statutory rights to bring various types of claim.  The point of Mr Leach’s submission is that without section 7(2), the relevant parts of the 2013 Rules might be vulnerable to the general criticism that secondary legislation cannot cut down rights conferred by primary legislation.  But section 7(2) authorises such an effect, to the extent, at least, that claim is not “instituted in accordance with” the relevant Rules.

 

34. There was a dispute about what “instituted” means, however. Ms Newbegin submitted that it means “presented” and that Rule 8 in the 2013 Rules was the only Rule authorised by section 7(2) as derogating from the statutory right to bring a claim.  I reject that submission.  Rule 12 does two things.  First, by implication it imposes requirements about the contents of an ET1 as presented under Rule 8.  Second, it provides the procedure by which the ET must deal with ET1s which do not meet those requirements.  In my judgment, “instituting” a claim “in accordance with … procedure regulations” means presenting a claim (a) by the process prescribed in procedure regulations, and (b) of a kind which complies with any requirements about the form and contents of the ET1 which are imposed by those regulations.  The imposition of those requirements is separately authorised by section 7(3ZA), which also uses the word “instituting”.

 

35. If the only issue on this appeal had been how to apply Rule 12(1)(b) of the 2013 Rules, I would have allowed the first appeal. However, I do not consider that the Rule 12(1)(b) is the end of the inquiry.  Before the hearing I raised with counsel the question whether Rule 12(1)(b) is authorised by section 7 of the ETA.

 

36. Section 7(1) confers a wide power on Secretary of State to make procedure regulations. Section 7(2) requires proceedings before ETs to be instituted in accordance with procedure regulations.  I have explained above why I accept the submission that this provision cuts across and restricts the right of access to the ET, conferred by various statutes, to bring proceedings before the ET to vindicate different statutory rights.  The institution of such proceedings must conform with the material provisions of the procedure regulations (provided that those provisions are, themselves, authorised by the primary legislation).

 

37. Section 7(3) authorises certain general types of provision. I do not consider that it is necessarily an exhaustive statement of the regulations which the Secretary of State may make under the wide power conferred by section 7(1).  The regulations which the Secretary of State has power to make can authorise him to prescribe requirements in relation to any form “which is used for the purpose of instituting … proceedings in” the ET for any form to be used as a claim form or notice of appearance (section 7(3ZA)).  I accept Mr Leach’s submission that section 7(3ZA) is authority for the requirements which are imposed by Regulation 12(1).

 

38. The scheme of section 7 is, however, to confer on the Secretary of State express powers to make procedure regulations which interfere in an unusual way with rights of access to the ET, and, in particular, those which interfere with the right to have a hearing. Thus section 7(3ZB) expressly authorises the Secretary of State to make regulations which limit the number of postponements which a party may have.  Section 7(3A) read with section 7(3AA) authorises the Secretary of State to make regulations which provide for the ET to make a determination in proceedings without any hearing (in very limited circumstances only).  Similarly, section 7(3B) authorises the Secretary of State to make procedure regulations which enable the ET to determine a claim without hearing from anyone other than the Claimant or his representatives.  The relevant circumstance, provided for in section 7(3B)(b), is very narrow; it is where it appears from the application that the Claimant is not seeking any relief which the ET has power to give, or is not entitled to any such relief.

 

39. I do not consider that the wide power conferred by section 7(1) authorises the Secretary of State to make procedure regulations which provide for a claim to be determined without any hearing in circumstances other than those described in section 7(3AA). The correct approach in my judgment is that that wide power is constrained by section 7(3A) and (3AA).  They are an exhaustive statement of the circumstances in which the Secretary of State is authorised to make procedure regulations which make the unusual provision that a claim may be determined without any hearing.  Similar reasoning applies, in my judgment, to section 7(3B).  It is an exhaustive statement of the circumstances in which the Secretary of State is authorised to make procedure regulations which enable an ET to determine a case having heard only from the Claimant.

 

40. I have considered what weight I should give to the fact that word “only” is present in subsection (3AA) and absent from subsection (3B). I have decided that this is not significant, for two reasons.  First, its presence in subsection (3AA) reflects the legislative history.  Subsection (3AA) was inserted later than subsection (3A) in order to cut down the wide power originally conferred by subsection (3A).  Second, since subsection (3B) has been expressly inserted to authorise regulations restricting the right to a hearing, I consider that the maxim expressio unius exclusio alterius applies.  In other words, the express provision Parliament has made excludes the implication of additional provision of a similar character.

 

41. Rule 12(1)(b) was in the 2013 Regulations as first promulgated. It restricts access to justice and is an unusual provision in at least three ways.  First, it enables a claim to be rejected in limine, without the ET hearing from any party at all.  If that stood alone it is doubtful whether it would be authorised by section 7; see section 7(3A) read with section 7(3AA).  The ET will only hear from one party, the Claimant, if the Claimant exercises the right, conferred by Rule 13, to ask for the rejection to be reconsidered.  So the second unusual feature, which is authorised by section 7, is that a final determination will potentially be made after hearing from only one party.  The third is that this Rule restricts access to justice by purporting to authorise the ET to reject a claim if “it cannot sensibly be responded to or is otherwise an abuse of process”.  The parties agreed that the draftsman has assumed that presenting a claim in such a form is an abuse of process, and that the Rule requires an EJ to reject such a claim and any other claim which is “otherwise an abuse of process”.

 

42. As I have indicated, Rule 12(1) makes requirements about the contents of the ET1. To the extent that it does that, it is authorised by section 7(3ZA).  I reject Miss Newbegin’s submission that section 7(3ZA) only authorises requirements “relating to the form itself” and does not authorise stipulations about what information should be in, or with, the form.  I do not consider that the explanatory note on which she relies supports this submission; it is to a contrary effect.

 

43. But Rule 12(1)(b) does more than to prescribe requirements. It also prescribes a procedure for enforcing those requirements.  That procedure, except and in so far as it coincides with subsection 3(B), is not authorised by the primary legislation.  Mr Leach submitted that the procedure was authorised, because a power to make requirements implied a power to provide for sanctions if the requirements are not complied with.  He relied on a broad statement in the judgment of Lord Selborne LC in Attorney General v Great Eastern Railway Company LR 7HL 653 that the ultra vires rule is to be applied reasonably.  The actual decision in that case was that the impugned transaction was expressly authorised by the legislation.  In any event, Rule 27 provides a mechanism for enforcing these requirements.  Mr Leach’s submission is not an answer to this point.  The drafting of section 7 shows in my judgment that Parliament appreciated that provisions curtailing the right to a hearing are unusual and wished to provide specific (but limited) authority for such procedures in the ET.

 

44. There is an overlap between a claim “which the Tribunal has no jurisdiction to consider” (in Rule 12(1)(a)) and the test in section 7(3B) (“it appears from the application … that the [Claimant] is not seeking any relief which an [ET] has power to give … or that he is not … entitled to it”). The difficulty for the Respondent is that it is clear from the ET1 that the Claimant is seeking relief which the ET has power to give, and there is nothing to indicate that she is not entitled to it.  It is also clear that her claims are claims over which the ET has jurisdiction.  I bear in mind Ms Newbegin’s correct submission that an EJ should not reject a claim unless he is sure that the applicable test is met.  I consider that an EJ applying the test which is authorised by statute would have been bound to conclude that the claim should not be rejected.

 

45. Although I have held that, applying Rule 12(1)(b), the EJ was bound to reject the ET1, for the reasons I have given, I consider that the test in Rule 12(1)(b) is not authorised, in the context of the procedure provided for by Rule 12, by any of the provisions of section 7, or by the general power conferred by section 41(4). Such a drastic interference with the right to bring a claim cannot be characterised as “incidental, supplementary or transitional provision”.  The application of that test, however, is not problematic in the context of the Rule 27 procedure, and, that, it seems to me, is the correct procedure for enforcing compliance with the requirements imposed by Rule 12.

 

46. Thus the EJ erred in concluding that the claim could sensibly be responded to. So he erred in applying that test incorrectly to the facts.  However, the only provision in Rule 12 which is authorised by section 7 is Rule 12(1)(a).  The claims were indisputably claims which the ET had jurisdiction to consider, as they were claims for unfair dismissal and for arrears of pay.  So his error is an immaterial error.

 

47. Ms Newbegin made some submissions about Article 6. Because of the view I have taken on the effect of section 7(3B) I do not need to decide them.  I would have been minded to reject them, by analogy with the reasoning in Anderton v Clywd County Council [2002] EWCA Civ 933, [2002] 1 WLR 3174, a case on the relationship between the Civil Procedure Rules and Article 6, which Mr Leach relied on.

 

48. It follows that I must dismiss the appeal against the Decision not to reject the claim.

Did EJ2 err in law in refusing to reconsider EJ1’s decision not to reject the claim?

49. That conclusion means that the second appeal, against the ET’s refusal to reconsider that decision, is academic. Even if the ET erred in refusing to reconsider the decision, if the decision was incontestably correct, it could not be “necessary in the interests of justice” for the ET to reconsider it (see Rule 70).

 

50. Since I have heard argument on this point, I will express my views on it briefly, for what they are worth. The ET refused to reconsider the decision not to reject the claim on one ground only, which was that the decision was not a “Judgment”.  I assume that the EJ recognised, correctly, that he had power to reconsider the decision (if it was a Judgment), and that an application had been made, in time, for the decision to be reconsidered.  I also consider that the ET was right to conclude, on the true construction of the reconsideration provisions in the Rules as a whole, that the power to reconsider only applies to Judgments and not to case management Orders.  It is clear from Rule 1(3) that these are mutually exclusive categories.

 

51. I reject Ms Newbegin’s submission that the existence of Rule 13 prevents a Respondent from applying to reconsider a decision not to reject an ET1. Rule 13 provides a specific procedure for a Claimant to apply for reconsideration of a decision to reject his claim.  That procedure has specific consequences.  For example, if the ET decides that the defect can be rectified, the claim as rectified is treated as having been presented on the day when it was rectified.  The existence of that procedure does not by necessary implication (for that must be the test) prevent a Respondent, once notified of a decision to accept a claim, from applying under Rule 70 for that decision to be reconsidered, provided that that decision is a “Judgment”.  Specific provision has been made in the 2013 Rules about a Claimant’s application for reconsideration of the rejection of a claim in order to ensure, in particular, that if the claim is rectified, the rectification does not relate back to the date when the defective claim was first presented.

 

52. I also note that there is no specific provision in the 2013 Rules preventing a Respondent from applying for a reconsideration of a decision not to reject an ET1; contrast Rule 34(2) in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004; 2004 SI No 1861, which Mr Leach referred me to. That provision dealt with reviews, the precursor of reconsiderations.  These linked factors support my view a Respondent may apply for a reconsideration of a decision not to reject an ET1 under the general reconsideration provisions of the 2013 Rules.

 

53. So was EJ1’s Decision a “Judgment”? I have set out the relevant provisions.  The question is whether the decision whether to reject a claim “finally determines any issue which is capable of finally disposing of any claim … even if it does not necessarily do so”.  Ms Newbegin submitted that EJ1’s Decision was not such a decision because it was not capable of “finally disposing of” the claim.  The reason for that was that a decision to reject a claim would not prevent the Claimant from presenting a second claim based on the same statutory causes of action.  She relied on paragraph 41 of Software Box Limited v Gannon UKEAT/0443/14; [2016] ICR 148.

 

54. Whether this argument is right depends on the meaning of “claim” in this context, and what is meant by “dispose” (as opposed to “determine”). I accept Mr Leach’s submission that if one applies the definition of “claim” in Rule 1(1), it is clear that a decision whether or not to reject the ET1 does finally determine an issue which is capable of finally disposing of the current claim (or “proceedings before the [ET] making a complaint”), even if that disposal does not prevent the making of a second claim.  The word “dispose” has been used in careful contradistinction to “determine”.  The determination of a claim prevents the bringing of a second identical claim.  But the disposal of a claim does not necessarily do so: see the Gannon

 

55. If the claim is rejected, that claim is finally disposed of (subject to the right to apply for reconsideration, and to bring a second claim). A decision whether or not to reject a claim does not necessarily dispose of the claim, if the decision is not to reject it.  But that does not prevent Rule 1(3)(b)(ii) from applying, as that provision specifically contemplates a decision which does not necessarily finally dispose of the claim.

 

56. Had it therefore been necessary for me to decide the second appeal, I would have allowed it.

Conclusion

57. The EAT has jurisdiction to entertain these appeals. I dismiss the first appeal.  That decision makes a decision on the second appeal academic.  There would be no purpose in requiring the ET to reconsider a decision which as incontestably right.  I dismiss that appeal also.