United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms J May (Solicitor) Messrs NBM Massucco Shelbourne 4 Clifton Court Cherry Hinton Road Cambridge CB1 7RY
For the Respondent	Mr McFarlane Qdos Consulting Ltd Qdos Court Rossendale Road Earl Shilton Leicestershire LE9 7LY


 


SUMMARY

The Employment Tribunal rejected a claim for unfair dismissal for non-compliance with Rule 1(4)f): there was no express statement (or ticked box, as the new form was not used) that the Claimant was an employee. There is in fact no issue between the parties that the Claimant is an employee:

(i) The averments in the Claim Form (including dates of employment) were sufficient for compliance with 1(4)(f)

(ii) Even if there had been non-compliance, the claim should have been accepted on review, where the error is immaterial and/or explained and/or on the basis of justice and equity: there is, as for a respondent (see Moroak), a jurisdiction to review which includes correction of error or omission and/or excuse for delay.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by Mr Stephen Richardson against the refusal by the Employment Tribunal at Bedford to accept his claim for unfair dismissal against the Respondent U Mole Ltd.
2. Mr McFarlane, the legally qualified consultant representative of the Respondent has attended today, and helpfully put forward submissions as to why this appeal should not be allowed, including the paper disclosure of a decision of Judge Prophet in Grimer v KLM Cityhopper UK EAT0070/05, which is on the face of it unhelpful to his case, and the matter has thus been fully argued before me. I am satisfied, however, that this is a situation in which the Tribunal acted in what it saw to be the strictest possible compliance with what I have no doubt this Tribunal, as do many other employment tribunals, regard as being unsatisfactory Rules. I am equally clear that there is an answer to this problem, and I propose to allow the appeal so that the injustice, which would otherwise be done, of driving this Claimant from the judgment seat, or, at best, submitting the Claimant to the rigours of the time bar jurisdiction, can be avoided, but it must nevertheless be said that the sooner that these Rules are looked at again the better.
3. In a number of cases which antedated the new Rules it was left uncertain as to whether requirements, either for originating applications or responses, were mandatory or directory or advisory and what the consequence would be of failing to comply with those requirements. The approach that was taken over many years by tribunals and by this Appeal Tribunal was that if parties failed to comply with requirements then the matter was best dealt with in most cases by accepting the application or the response as valid, and dealing with inadequacies by way of subsequent directions or applications for further information or further and better particulars. That system has now changed to introduce a clear test at the outset.
4. On the face of it the new Rules are extremely welcome, whereby there is a gateway to ensure that applications or responses kick off on a sensible and complete basis from the beginning, so that there is no need for subsequent clarifications. In the first instance, the ET secretary and, in the second instance, the chairman are the guardians of those gateways. It must make sense that if there are defects or gaps in applications or responses they be pointed out, rather like, as I pointed out in the course of argument to Mr McFarlane, an Immigration or Passport Officer at the entry to a country pointing out that paperwork of some kind, such as a visa form, had been inadequately completed, and ought to be completed before the person can be allowed in. If, however, the result of the imposition of the gateway is not simply to point out gaps which ought to be corrected, but to drive away a claimant so that, as, for example, in this case, it means that by the time the completely immaterial defect is corrected the claimant is out of time, then injustice is inevitably going to be done. I have no doubt that that is not, and if it were it should not be, the purpose of the Rules, and, as Judge Prophet has said in Grimer, there ought to be, and is, an overriding objective of encouraging dealing with cases justly and fairly, such that the tribunals ought to be in the business of ensuring that that is the case, rather than driving possibly meritorious claimants or indeed respondents from the judgment seat. Moroak t/a Blake Envelopes v Cromie EAT0093/05, it was concluded by an employment tribunal chairman, in common with a number of others in other cases, that there was no power to grant an extension of time upon an otherwise justified excuse put forward by a respondent after the expiry of the period for putting in a response, and I concluded that that was not the proper construction of the Rules.
5. I have seen other examples, either waiting in the wings for appeal or being dealt with on our sift, where respondents have, by error, omitted, for example, in one case an address, resulting in their response being rejected and their being thus debarred from defending a claim. That is not an appropriate use of the Rules and in my judgment the better course is to construe the Rules in order to avoid such injustice.
6. The facts here are that the Claimant was an employee of the Respondent. That is not in issue. It is made clear by Mr McFarlane that there is no dispute about the fact that Mr Richardson was an employee of the Respondent and, indeed, if there would have otherwise have been any doubt, that is resolved by the fact that when, having been rejected by the Employment Tribunal, this Claimant put in a fresh, out of time, claim in which the assertion that he was an employee was positively stated, the Respondent in its Response to the new claim, admitted that fact. Nevertheless the Claimant was rejected by the Employment Tribunal in relation to his first claim on the basis that he had not expressly stated that he was an employee. The Rules in question, being the new 2004 Rule 1(4), provide for the giving of required information in relation to a claim, and the Rule reads as follows:

"1(4) … the required information in relation to the claim

(a) each claimant's name;

(b) each claimant's address;

(c) the name of each person against whom the claim is made ("the respondent");

(d) each respondent's address;

(e) details of the claim;

(f) whether or not the claimant is or was an employee of the respondent;

(g) whether or not the claim includes a complaint that the respondent has dismissed the claimant or has contemplated doing so;

(h) whether or not the claimant has raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal office;

(i) if the claimant has not done as described in (h), why he has not done so."

The decision of the Secretary and Chairman of the Employment Tribunal in this case was that the Claimant had not compiled with 1(4)(f).

7. I have seen another case which has been sent to a fast track hearing before this Appeal Tribunal in which the point which was taken against the claimant was that there had been non-compliance by omission with 1(4)(h) when in fact, rather as here, the issue was entirely immaterial as it turned out, because the claimant had indeed raised the subject matter of the claim in writing at least in 28 days, and such was not an issue. Nevertheless, it was and remained, rejected by the Tribunal.
8. In the event, I am satisfied in relation to this claim that there was no breach of 1(4)(f). There is a new prescribed form, which will in terms address, by way of a separate box, each item in Rule 1(4), which will mean that if a particular question is not answered, its non-answer will be the more obvious. That is not to say that there may not from time to time still be entirely accidental omissions. I referred earlier to the example of the respondent, in relation to the equivalent obligations in respect of the response form (Rule 4(3)), which in fact was an NHS Trust, and had omitted its address by error; and one can almost imagine the scenario in which someone filling out the form says to himself 'I haven't got a stamp with me at the moment but I will fill in the address in the box before sending the form off' and then forgets to do so. Nevertheless, it will be the more difficult to fail to comply with s.14 once the new form comes in.
9. The Claimant in this case did not use the new form, which, although not mandatory until 1 October 2005, is, I understand, available on the web site. He used another form, and that form did not have a specific box to complete in compliance with s1(4)(f), or indeed in compliance with 1(4)(g) (h) or (i) had any of these been relevant, but the questions and answers which are provided for in this Claim Form are in my judgment entirely sufficient.
10. Question 4 asks the claimant to "give the name and address of your employer, person or body (the respondent) you are complaining about"; and the answer is given by the Claimant of the Respondent with the Respondent's address. Clearly because there is the alternative option of "person or body … you are complaining about", that of itself would not be a sufficient answer to put beyond doubt the fact that the Claimant was asserting that the Respondent was his employer.
11. Under paragraph 5 there is a question "Please say what job you did for the employer (or what job you applied for)? If this does not apply, please say what your connection was with the employer?" The answer is given as "Customer Service Manager". On the face of it that is a response by the Claimant that he was an employee in that job. However this is then, in my judgment, put beyond doubt by question 8 and its answer, which is "Please give the dates of your employment": "11 May 1993 to 22 October 2004". The Claimant is there asserting that he was an employee between those dates.
12. In the lengthy paragraph 10, giving, in the fullest possible compliance with Rule 1(4)(e), the details of the claim, the Claimant uses, or the solicitors who completed the form on his behalf use, words of employment. In 10A(2) they state "This was the job that he had originally been employed to undertake." In paragraph 10B(2)(e) they state "The Respondent's decision to dismiss the Claimant for gross misconduct did not fall within the range of reasonable responses open to a reasonable employer within that industry".
13. Mr McFarlane submits that all of those answers, or most of them, are in fact driven by the form which happens to have been used, and the fact that the answer, by way of dates, is given to a question "Please give the dates of your employment?", does not amount to a definite assertion by the Claimant that he was an employee. Thus too, the words used in 10A(2,) he submits, are consistent with an assertion that he may have originally been an employee but may not have remained one: further or alternatively, that the reference to a reasonable employer is a generic one, rather than specific to the Respondent. Of course, it may well be that, in a given case, someone who is only needing to assert that they are a worker, for example making claims under the Working Time Regulations, or by way of discrimination, and using this form, may be driven into an assertion that the Respondent is their employer and/or that they are an employee without really meaning it. To that extent, I accept that the answers are driven by the form of the questions in relation to a particular form. All that of course could be flushed out in due course. What I am however entirely satisfied about is that, whether as a result of the particular form or otherwise, this Claim Form sufficiently disclosed that the Claimant was in fact asserting, by implication if nothing else, that he was an employee, and, as it happens, he was an employee and there is no issue about it. In those circumstances, there is, in my judgment, no doubt whatever that, although there was not a specific box, as there does not yet need to be, pursuant to 1(4)(f), this Claim Form adequately answered the question whether or not the Claimant was asserting that he was an employee of the Respondent. The Claim Form ought therefore to have been accepted.
14. Mr McFarlane, in my judgment, rightly submits, and Miss May for the Appellant has been driven to concede, that the basis of her appeal in fact has to be perversity. It seems to me right that this is the only way in which there can be expressed the error made by this Tribunal in having failed to accept that the required information under Rule 1(4)(f) was in fact given. It was an error of law, but I accept that it can only be put on the basis that no reasonable secretary or chairman could have done anything other than accept that the form did, in fact, give that information. I accept that the hurdle is a high one in such cases as Crofton v Yeboah [2002] IRLR 632 although, of course, normally the test of perversity is applied to the assessment, by the industrial jury, of oral or documentary evidence, when the overwhelming presumption is that the industrial jury will be in the best position to reach its conclusions about the facts, and that an appellate tribunal should not ordinarily interfere. This is a very different kind of question here, a very different application of the question of perversity. In my judgment, the answer ought plainly to have been given by the Secretary and/or by the Chairman, that this was not a breach of Rule 1(4)(f).
15. I do not however end my judgment by simply allowing the appeal on that basis, because it is in my judgment important that the position be clarified as soon as possible as to what is the case in the event of a failure to comply with Rule 1(4)(f), picked up diligently at the gateway by the secretary and/or the chairman. The position here is the same for claim forms as for responses. The gateway is imposed by Rule 3 so far as claim forms are concerned. By that Rule:

"3(2) The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances applies:

(a) the claim does not include all the relevant required information;

(b) the tribunal does not have power to consider the claim (or that relevant part of it) or

(c) section 32 of the Employment Act (complaints about grievances) applies to the claim or part of it and the claim has been presented to the tribunal in breach of subsections 2 to 4 of section 32 …

3. If the Secretary decides not to accept the 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."

16. Subrule (6) deals with the specific matter of s32(2) - (4), of the Employment Act. The Rule continues as follows:

"7. Except for the purpose of paragraphs (6) and (8) or any appeal to the Employment Appeal Tribunal, where a chairman has decided that a claim or part of one should not be accepted, such a claim or the relevant part of it is to be treated as if it had not been received by the Secretary on that occasion.

8. Any decision by a chairman not to accept a claim or part of one may be reviewed in accordance with rules 34 to 36. If the result of such review is that any parts of the claim should have been accepted, then paragraph (7) shall not apply to the relevant parts of that claim and the Secretary shall then accept such parts and proceed to deal with it as described in rule 2(2)."

17. That power to review a decision is mirrored in the power given in relation to rejections of responses. I do not propose to read the whole of that part of the Rules which relates to the similar gateway with regard to responses set out in Rule 4, but that procedure, which is effectively a mirror image of the claim form procedure, concludes with Rule 6(6):

"Any decision by a chairman not to accept a response may be reviewed in accordance with rules 34 to 36. If the result of such a review is that the response should have been accepted then the Secretary shall accept the response and proceed to deal with the response as described in rule 5(2). "

18. I dealt with the existence of that power to review in Moroak, and it was entirely clear to me that the power to review on the grounds of the interests of justice applied to a response which had been rejected as out of time and in respect of which there had not been an application for an extension prior to the expiry of the relevant period for some reason that a Tribunal found acceptable, applying the principles of justice and equity. So too in this case. This is rather similar to the case of the respondent leaving out its address in error, and to the case of the applicant leaving out in error the fact that, in fact, he had complied with Rule 1(4)(h), to which I referred earlier. In this case too, there is what is clear to be a wholly immaterial error.
19. Of course, it might be that, in some cases, whether or not a claimant is an employee is a material matter going to the foundation of the jurisdiction, and that would be a matter to consider on a review, namely as to whether it would be just and equitable to allow a correction of an earlier error or omission where it might found a claim based on employment which had not been previously asserted, at any rate expressly. Similarly, no doubt applying principles analogous to those in Selkent Bus Co v Moore [1996] ICR 836, it might well be a matter of considerable contention to allow, on a review, a correction of an error with regard to failure to give required information under Rule 1(4)(e). But, in a case such as this, where it would be asserted and accepted by the Respondent if asked by the Chairman, that the error was an immaterial one, it is quite plain that on a review this claim would and should have been allowed to go forward and there would thus be a conclusion within Rule 3(8) on a review that the claim should have been accepted, because on the information before the Chairman on a review the error was explicable and/or immaterial. Much as I sympathise with those tribunals who are concerned about the Rules as they presently stand, and would prefer them to be amended so as to make the position clear, in my judgment, there is a power to review by reference to Rules 3(8) and 6(6) which enables a tribunal to do just that justice which tribunals are keen and conscientious, and always have been keen and conscientious, to do, notwithstanding the change of Rules. What should be, and will be, beneficial, namely the introduction of these gateways, must not be allowed to degenerate into injustice, and in this case the claim should have been allowed through at first instance. In other cases, even if not allowed through at first instance, in an appropriate case, and after consideration of the ordinary principles under Rule 34(3)(e) of the interests of justice, it will or may be appropriate to allow a claim form, or response, which did not initially comply with the requirements through on a review.
20. This appeal is accordingly allowed and I am grateful to both parties for their assistance.