United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAMIAN McCARTHY (Of Counsel) Instructed by: Messrs Ward Gethin Solicitors 8-12 Tuesday Market Place King's Lynn Norfolk PE30 1JT
For the Respondent	RESPONDENT NEITHER PRESENT NOR REPRESENTED

SUMMARY

Application to ET rejected by ET under Rules 1-3 of the 2004 Rules of Procedure contained in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 because claimant did not provide "details of the claim" – held an error of law because the claimant did provide such details as set out in EAT judgment – Order made that the claim was validly lodged and should now be processed through the ET in the usual manner.

HIS HONOUR JUDGE PROPHET

1. This appeal raises matters of some importance for Employment Tribunals in respect of Rules 1, 2 and 3 of the 2004 Rules of Procedure contained in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 which came into force on 1 October 2004.
2. Mrs Grimmer submitted to the Employment Tribunal at Bury St Edmunds a claim dated 9 November 2004. It appears from the papers before me that that claim was presented to the Employment Tribunal on 16 November 2004. She indicated that she had no representative acting for her but I understand that the Transport and General Workers Union was assisting her at the time. She filled in the details requested of her on the form IT1 including the fact that at the date she presented the form she was still working for the employer. In Box 1 which asked her to give the type of complaint she wanted the Tribunal to decide she put down:

"FLEXIBLE WORKING"

And in Box 11 which asked her to give details of her complaint she attached a statement which said:

"The company's business argument for refusing my application is based upon their assumption that, if they concede to my request, others would be requesting similar/same working arrangements."

3. 3. She duly received a letter from the Employment Tribunal at Bury St Edmunds dated the 24 November 2004 signed by a Mrs Sparks for the Regional Secretary of the Tribunals which said this:

"Employment Tribunals Rules of Procedure

I acknowledge receipt of your claim form.

Your claim form has been referred to a chairman, Mr I F Pritchard-Witts, who has decided that your claim cannot be accepted for the following reason(s)

Under Rule 1(4) of the Rules of Procedure, a claim cannot be accepted unless certain information is provided by the claimant. The information you have not provided is shown below:

details of your Claim

I am therefore returning your form to you. If you wish to continue with your claim you must provide this information and return the form to the tribunal office at the address above quoting the pre-acceptance number. If the statutory grievance procedure applies to your claim, you may be able to take advantage of an extension of three months from the date of expiry of the original time limit.

Your complaint is one to which the statutory grievance procedure applies. Such a complaint cannot be presented to an Employment Tribunal unless the claimant has first sent a written statement of grievance to the respondent at least 28 days before presenting their claim.

Although you have indicated that your claim is about something other than dismissal, you have not stated:

whether or not you sent a written statement of grievance to the respondent;

I am therefore returning your form to you. If you wish to continue with your claim you must provide this information and return the form to the tribunal at the address above quoting the pre-acceptance number. Please note that the original time limit for commencing these proceedings has been extended by 3 months to allow you to carry out these necessary steps. However, you should submit your written statement of grievance to your employer as soon as possible and in any event not later than one month after that original time limit expired. If you fail to do so the tribunal will not be able to consider your claim.

Please refer to the booklet 'Making a claim to an Employment Tribunal'. If you have any queries please ring the enquiry line, telephone number 0845 7959775.

You have the right to apply for a review of this decision. If you wish to do so you must apply in writing within 14 days of the date of this letter quoting the pre-acceptance number. You must explain why you believe the decision not to accept your claim is wrong. The only grounds on which the decision can be changed are if a chairman is satisfied that:

it was wrongly made as a result of an administrative error, or

the interests of justice require it.

If you believe that the decision not to accept your claim is wrong in law, you may also appeal to the Employment Appeal Tribunal provided you do so within 42 days of the date of this letter."

4. It was apparent from the contents of that letter that Mrs Grimmer's attempt to lodge a valid claim to the Employment Tribunal had at that stage been rejected. Consequently Mrs Grimmer immediately sought advice from solicitors who wrote on her behalf a letter dated 26 November 2004 which said this:

" URGENT

26 November 2004

Dear Sirs

Mrs Kim Grimmer v KLM Cityhopper

We understand from our client, Mrs Grimmer, that the claim has been rejected on the basis that insufficient details have been provided.

In view of the time limits, we supplied the documentation provided for by our client and sent it through to you at 4.22pm on 22 November 2004 by fax.

We attach a copy of the receipt. We also again attach the IT1.

We are obviously anxious about time in this matter. The last date for submission of the claim is today.

Please be so good as to acknowledge receipt.

Yours faithfully

WARD GETHIN"

5. A reply from the Employment Tribunal dated 29 November 2004 signed by V J Marsh for the Regional Secretary said this:

" Pre-Acceptance

reference:PA/BSE/252/04/B

Dated: 29 November 2004

Dear Sir

EMPLOYMENT TRIBUNALS RULES OF PROCEDURE

Mrs K Grimmer v KLM City Hopper UK

Thank you for your letter dated 26 November 2004.

This has been referred to a Chairman of the Tribunals (Mr I Pritchard-Witts) who has directed me to reply to you as follows:

1. I do not regard this as a review application.

2. If I did, on the basis of this information, I do not believe I would have granted it.

Yours faithfully

V J MARSH

For Regional Secretary"

That led to a further letter from Mrs Grimmer's solicitors to the Employment Tribunal dated 10 December 2004 which said this:

"10 December 2004

Dear Sirs

Mrs Kim Grimmer v KLM Cityhoppper

We thank you for your letter.

We enclose a copy of the letter of rejection which includes proof that the matter had been raised internally as required under the Rules. We apologise that this was not also accompanying the form, which our client had completed and we simply passed on.

We wonder whether the issue could be revisited and the claim processed.

In the alternative, please let us have a date of hearing when we will be able to argue that the application had been lodged in time.

We look forward to hearing from you.

Yours faithfully

WARD GETHIN"

Accompanying that letter was a copy of a letter dated 27 August 2004 from KLM Cityhopper to Mrs Grimmer headed flexible working appeal/personal grievances appeal, which indicated that Mrs Grimmer has sought from her employer flexible working in view of child care arrangements, but without success, and that she had pursued the matter as a grievance.

And that led finally to a document from the Employment Tribunals dated 16 December 2004 again signed by V J Marsh for Regional Secretary which said this:

"Employment Tribunals Rules of Procedure

I acknowledge receipt of your application to have the decision rejecting your claim reviewed by a chairman.

Your application has been considered by a chairman (Mr I Pritchard-Witts), who has rejected it for the following reasons.

As the claim details have not been provided, it is rejected.

If you believe that this decision is wrong in law, you may appeal in writing to the Employment Tribunal explaining your grounds of appeal. Your appeal must reach them within 42 days of the date of our original letter rejecting which was 24 November 2004."

6. There are a number of comments which could be made on the contents of the above letters, but the essential situation which was thereby reached was that the Employment Tribunal had refused to accept Mrs Grimmer's application as being a valid application. The solicitors presented an appeal to this Tribunal on 5 January 2005 setting out the grounds of appeal as follows:

"The Appellant seeks to bring a claim for failure to comply with her request for flexible working. A form claiming this was lodged with the Tribunal within the three months limited under the regulations. A copy of this application, together with its statement is attached. The Tribunal refused to accept the application and therefore a further application was lodged since it was thought that the explanation page had not already been sent. This was further faxed. Nothwithstanding this, the Tribunal refused to accept the applications being validly made within the rules. It is the Appellant's case that the application was made and that the decision of the Tribunal was wrong in law.

The application form lodged with the Tribunal complied with the regulations of the Tribunal in relation to matters which had to be set out by way of information to be provided to the Tribunal.

The Appellant will seek an Order from the Employment Appeal Tribunal which allows the Employment Appeal Tribunal's application to proceed."

The appeal was set down for an expedited Full Hearing before this Employment Appeal Tribunal but the Respondent has taken the line that they do not wish to make any detailed contribution to this hearing and will not be in attendance. Mr McCarthy of Counsel appears on behalf of Mrs Grimmer.

7. At first blush it might be thought that the effect of Rules 1-3 is relatively straightforward. There are set out at Rule 1(4) nine items labelled '(a)' to '(i)' which are described as "required information". If the claim does not set out all the relevant "required information", including "details of the claim", it is provided by Rule 3(2) that the Secretary of the Employment Tribunal shall not accept the claim. The Secretary must then refer the matter to a Chairman in accordance with Rule 3(3)-(5).

"(3) If the Secretary decides not to accept a claim or part of one for any of the reasons in paragraph (2), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in paragraph (2) whether the claim or part of it should be accepted and allowed to proceed.

(4) If the chairman decides that the claim or part of one should be accepted he shall inform the Secretary in writing and the Secretary shall accept the relevant part of the claim and then proceed to deal with it in accordance with rule 2(2).

(5) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed."

Thus the Rules provide that the Chairman, in effect, makes the Decision as to whether the claim can be accepted. I have not seen, nor has Mr McCarthy, the written reasons from the Chairman in the document signed by him, and Mr McCarthy suggests that that document ought to be sent to the parties. I will assume, however, for the purposes of this case that the reasons read "not providing details of the claim". I am not clear whether the Chairman ever dealt with or provided reasons in respect of the second matter in the letter dated 24 November 2004 ie "whether or not you sent a written statement of grievance to the Respondent" and whether therefore Rules 3(3 to 5) as they stand were properly engaged, but it is not necessary for me to pursue that matter today, as that did not form part of the final refusal by the Employment Tribunal to accept the claim.

8. When one moves on from the mechanics of Rules 1-3 some matters of fundamental importance to the interest of justice arise. The Rules cannot be seen in isolation. The Chairman, unlike the Secretary whose functions are administrative has, as an independent judicial person, to do more than merely run down a checklist. He or she must have in mind the overall interests of justice. It is a very serious step to deny a claimant or for that matter a respondent the opportunity of having an employment rights issue resolved by an independent judicial body ie an Employment Tribunal. Most Chairmen would not wish to feel forced to do so without their being a very good reason.
9. Comparison with striking out, as Mr McCarthy has emphasised to me today, illustrates the reluctance of Tribunals and Courts to approve such denial if there exist other means by which that can be avoided. There is considerable authority on that and Mr McCarthy has drawn particularly to my attention two cases, National Grid Co Plc v Virdee [1992] IRLR 555 and Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371. Mr McCarthy submits that the situations which arose in those illustrative cases involve some wilful default by a party and there was no wilful default on the part of Mrs Grimmer.
10. What is the purpose of insisting through Rules that a failure to provide all the "required information" can lead to a claim not being accepted as a valid claim? If the primary responsibility for making judicial rules rests, not with the judicial body but with the executive, there is a danger that executive objectives may gain precedence over the interests of justice. One can see that providing such information is desirable both to smooth the passage of the complaint through administrative and judicial processes and also for the benefit of the Respondent should the claim reach the Respondent. But can it be essential to the point that the judicial body itself is compelled to take the draconian step of refusing to accept the claim at all when, as Mr McCarthy says, there is no compelling reason why the merits of the complaint cannot be examined?
11. Furthermore, how does such a policy meet the overriding objective in Regulation 3 of dealing with a case justly and ensuring that the parties are on an equal footing? How does it have proper regard to the fact that Employment Tribunals are frequently approached by claimants who are not legally represented? How does refusing to accept a claim on the basis of not providing "required information" affect a claimant in respect of the running out of time limits for bringing claims? How can principles of considering prejudice to the Claimant and the Respondent be taken properly into account? Could it be that a rigid application of these rules might result in a breach of the safeguards enshrined in Article 6 of the European Convention on Human Rights? Those questions and others arising from the operation of Rules 1-3 and the various items under the heading "required information" may well arise for further consideration in the future.
12. Some assistance from authority can be obtained from the decision of the Employment Appeal Tribunal in Burns International Security Services (UK) Ltd v Butt [1983] ICR 547. It was provided by Rule (1)(c) of the Rules or Procedure then in force that the claim "shall set out the grounds with particulars thereof on which relief is sought". The claimant, Mr Inayadullah Butt, had simply put down as the grounds of his complaint "unfair dismissal". The case for the employers was that the complaint was a nullity. Neill J, giving the judgment of the Appeal Tribunal said this:

"...We have come to the firm conclusion on the facts of the present case that the absence of these particulars did not render the originating application a nullity. In reaching this conclusion we take as our starting point the words of Fox L.J. in Druid Development Co (Bingley) Ltd. v Kay (1982) 44 P. & C.R. 76, 81, where he said in relation to applications by landlords for the registration of a fair rent under the Rent Act 1968:

"Applications under the Rent Act 1968 and its successors for the determination of a fair rent were and are often made by lay persons , without professional assistance, and I think that a technical approach to the requirements as to the contents of application forms is not to be encouraged in relation to them."

It seems to us that in the field of industrial relations where application forms are frequently completed by individual employees without professional assistance a technical approach is particularly inappropriate. We have also been assisted by the decision of the Court of Appeal in Howard v. Secretary of State for the Environment [1975] Q.B. 235 (a case involving a planning appeal where the relevant statute provided that the notice of appeal should be in writing and should indicate the grounds of the appeal and state the facts on which it was based) and by the decision of this appeal tribunal in Seldun Transport Services Ltd. v. Baker [1978] I.C.R. B 1035 where consideration was given to the requirements as to a respondent's notice of appearance contained in rule 3 of the Rules of 1974. It is to be remembered that an industrial tribunal has power under rule 4(1)(a)(i) of the Rules of 1980 to require any party to furnish further particulars of the grounds on which he relies and of any facts and contentions relevant thereto. It is also to be remembered that the requirements as to the addresses of the parties in rule 1(1) have been treated as sufficiently complied with if the parties were identifiable: see Smith v. Automobile pty. Ltd. [1973] I.C.R. 306 (address of respondents omitted) and Gosport Working Men's and Trade Union Club Ltd. v. Taylor (1978) 13 I.T .R. 321 (address of applicants omitted) .

It was pointed out in Cocking v. Sandhurst (Stationers) Ltd. [1974] I.C.R. 650 that the rules did not require that the complaint as presented should be free of all defects or should be in the form in which it finally came before the tribunal for adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them. The present rules give considerable powers to the industrial tribunal to control the conduct of the proceedings both before and at the hearing. We are satisfied that the originating application which the applicant presented in December 1981 constituted a complaint that he had been unfairly dismissed and was presented within the statutory time limit. The industrial tribunal therefore had jurisdiction under section 67 of the Act of 1978. In our view the requirements contained in rule 1(1) (save for the requirement as to writing) are not imperative but directory.

For these reasons, which differ from those of the industrial tribunal, this appeal must be dismissed. Consideration can now be given by the industrial tribunal to the merits of the application.

That was clear recognition that interpretation of what in the face if it might have been regarded as a mandatory requirement should not be taken to the point of denying a claimant access to the Employment Tribunal system and that the threshold for access should, in the interests of justice, be kept low.

13. A vital principle which emerges from a full reading of Mr Justice Neill's judgment in Burns is that the Employment Appeal Tribunal appears to have accepted the submission of Mr Goudie of Counsel on behalf of Mr Butt that the Rules of Procedure cannot cut down on an Employment Tribunal's jurisdiction to entertain a complaint which the primary legislation providing an employment right empowers it to determine. If there is a conflict, the Rules must give way. I can see no reason why that principle, which accords with the interests of justice, cannot be applied generally to Rules 1 to 3 of the 2004 Regulations. Those responsible for introducing these Rules do not appear to have had proper regard to the background indicated in the above cases.
14. As to the immediate case before me, Mrs Grimmer had clearly indicated in her claim that she wished to pursue a complaint in respect of flexible working. That is an employment right provided for in primary legislation – see the Employment Rights Act 1996 Part VII A sections 80F to 80I introduced by the Employment Act 2002, and expanded upon in the Flexible Working Regulations 2002. That was sufficient for her to have provided "details of the claim".
15. The test for "details of the claim" emerges as being whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the Employment Tribunal. It follows that if that test is met there is no scope for either the Secretary or a Chairman interpreting "details of the claim" as being "sufficient particulars of the claim". If it becomes necessary, as a case proceeds through the system, for further information or further particulars to be obtained eg to clarify the issues, that can be done, either on the application of a party or by a Chairman on his or her own initiative , under Rule 10 (case management).
16. Neither the Secretary nor the Chairman was therefore entitled to determine that it was appropriate to deny Mrs Grimmer access to the Employment Tribunal by refusing to accept her claim on the basis that she had not provided "required information" in the form of "details of the claim". That was an error of law. The appeal is allowed, and I substitute a decision that Mrs Grimmer's claim was validly lodged and should now be processed through the Employment Tribunal in the usual way.