United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW SHORT (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon LONDON SW19 1SE
For the Respondent	MR EDWARD MALLETT (of Counsel) Instructed by: Messrs Henmans LLP Solicitors 116 Aldates OXFORD OX1 1HA

SUMMARY

Practice and Procedure – Application/Claim

The Tribunal Secretary refused to accept a complaint on the grounds that it was not on a form prescribed in accordance with reg.14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Since the appropriate form had been filled in and faxed to the Tribunal, it was not self evident why it did not comply, and the Secretary gave no further explanation. The parties have inferred that it was because it was reduced in size as a consequence of the faxing process. The respondent contended that the Secretary was entitled to refuse the form on the grounds that size was an essential feature of the prescribed form, and that in any event the EAT did not have jurisdiction to hear the appeal of what was simply the administrative act of the Secretary. The EAT held that it did have jurisdiction to hear the appeal, and that the Secretary had erred in law in refusing to accept the form. The form was still a prescribed form, notwithstanding the reduction in size. Moreover, the explanation as to why the form had been rejected - an explanation required to be given by rule 3(1) of the Tribunal Rules of Procedure - was inadequate. Observations as to what kind of explanation should be provided.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This appeal raises a short point of some practical significance. On the 13 March 2006 the appellant lodged a claim for unfair dismissal and sought a protective award because of the alleged failure of the employer to consult employee representatives over certain redundancies.
2. By a letter dated 14 March the Employment Tribunal declined to accept the claim on the grounds that "it has not been presented on the prescribed form as required by rule 1(3) of the Employment Tribunals Rules of Procedure." A prescribed claim form was provided.
3. A fresh application was made on that very form on the 15 March and was also faxed to the Tribunal offices. This was rejected in precisely the same terms in a letter also dated 14 March but which it is accepted should have been dated the 16 March. In neither case was it explained in what respect the form failed to comply with the prescribed form.
4. When the appeal was first lodged, and indeed when the appellant's skeleton argument was submitted, it was thought that the first claim had not been lodged on a prescribed form but had been sent on a form which had some relevant boxes omitted. Potentially relevant information would be provided in these boxes. In fact, these boxes would have been left blank in any event even had they been included in the form. However, it is now common ground that both forms when filled in by the claimant were prescribed forms. It appears that it was somehow in the course of faxing the forms that they were altered in some way such that the Secretary did not consider them to be prescribed forms on receipt.
5. Although there is no explanation from the Secretary why the forms were not considered to be prescribed forms, the only explanation that either counsel can offer is that on receipt by the Tribunal they were somehow shrunk in the faxing process and were smaller than the prescribed form. Assuming that to be the case, the assumption underlying the rejection must be that size is a material feature of the form such that failure to present the claim on the appropriately sized form will be treated as a mandatory failure to comply with the procedures.
6. It is to be noted that the appellant believes that the form was in the size now said to be the necessary size when it was put on the fax machine for dispatch. Whether thereafter it was reduced in size because of the way it was transmitted or because of the way it was received, no-one is in a position to say.
7. The appellant sought a review, albeit out of time, of these decisions but an officer termed "the pre-acceptance manager" of the Tribunal refused the application on the grounds that the rejection of the claim forms was an administrative function and that the rules did not provide for a review. In any event, it was said that no error had been made. The appellant therefore appealed the two decisions.
8. It is common ground that the first claim had been submitted in time but the second had not and therefore, with respect to that claim, an extension of time would be required if it alone were found to be valid.
9. There are two issues which arise on the appeal. The first is whether the EAT has jurisdiction to hear the appeal at all. The second is whether the Tribunal erred in law in declining to accept either or both of the claims. As we have indicated, if only the second form had been validly presented then an issue would arise as to whether time should be extended; but that is not a matter which we could determine at this stage.

Context.

10. This appeal is concerned with the 2004 Rules. They lay down more extensive requirements which a claim must satisfy before it can be accepted than had previously existed. The claim must be in a particular prescribed form and it must contain certain material information. In part these changes were intended to reflect the fact that the jurisdiction of the Tribunal is removed in certain circumstances where the Dispute Resolution Regulations have not been complied with.
11. This Tribunal has on a number of occasions had cause to consider the operation of these new Rules. The general approach, which we think is wholly proper in cases of this nature, has been to construe them in favour of the claimant: see for example Grimmer v KLM Cityhopper UK [2005] IRLR 596 and Butlins v Benyon UKEAT/0042-45/06. There is a natural and proper reluctance to see a party denied the right to pursue a claim because of some technical breach of the procedural rules. At the same time, of course, the courts must give effect to the legislation and ensure that mandatory procedural provisions are complied with.

The law.

12. The jurisdiction of the EAT is statutory. Section 21 of the Employment Tribunals Act 1996 provides that:

"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of……"

and then various statutory provisions are stipulated, including those under which complaints are made in this case.

13. The provisions relating to the prescribing of appropriate forms on which claims can be initiated is as follows. Section 7(1) of the Employment Tribunals Act provides that the Secretary of State may make regulations such as appear to him to be necessary or expedient with respect to proceedings before Employment Tribunals.
14. Section 7(2) specifies that the proceedings shall be instituted in accordance with Employment Tribunal Procedure Regulations and s.7(3ZA), which was added by the Employment Act 2002, provides as follows:

Employment tribunal procedure regulations may –

(a) authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals,

(b) authorise the Secretary of State to prescribe requirements in relation to documents to be supplied with any such form, and

(c) make provision about the publication of anything prescribed under authority conferred by virtue of this subsection.

15. The regulations made under s.7 are the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The material provisions are as follows:

14 Power to prescribe

14 (1) The Secretary of State may prescribe –

(a) one or more versions of a form, one of which shall be used by all claimants for the purpose of commencing proceedings in an employment tribunal ("claim form") except any claim or proceedings listed in paragraph (3);

(2) The Secretary of State shall publish the forms and matters prescribed pursuant to paragraph (1) in such manner as she considers appropriate in order to bring them to the attention of potential claimants, respondents and their advisers.

16. The Employment Tribunal Rules of Procedure are then found in schedule 1 to the Regulations. Rules 1 to 3 of the Rules deal with the making of claims and are, so far as is material, as follows:

"1 Starting a claim

(1) A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal office the details of the claim in writing. Those details must include all the relevant required information …

(3) Unless it is a claim in proceedings described in regulation 14(3), a claim which is presented on or after [1^st October 2005] must be presented on a claim form which has been prescribed by the Secretary of State in accordance with regulation 14.

Paragraph (4) then sets out the information which should be provided.

2 What the tribunal does after receiving the claim

(1) On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with rule 3. If a claim or part of one is not accepted the tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date). If no part of a claim is accepted the claim shall not be copied to the respondent.

3 When the claim will not be accepted by the Secretary

(1) When a claim is required by rule 1(3) to be presented using a prescribed form, but the prescribed form has not been used, the Secretary shall not accept the claim and shall return it to the claimant with an explanation of why the claim has been rejected and provide a prescribed claim form.

17. This is the only situation where a claim form can be rejected without the Secretary obtaining the approval of a Chairman. Rule 3(2) sets out other situations where the Secretary can initially decide not to accept the form but he has to put those cases before the chairman, and his decision can in principle be reviewed or appealed.
18. As we have indicated, in this case we assume that the reason for rejection of both forms was that they were not of the appropriate size when received by the Tribunal. However, the duty lay with the Secretary under rule 3(1) to explain why the claim had been rejected. The purpose of that is to enable the parties to provide a proper and acceptable form on resubmission. Sometimes, such as where a handwritten application has been made without any reference to any form at all, it will no doubt suffice simply to say that the prescribed form has not been used, and for the appropriate form to be provided. That will be an adequate explanation and will alert the claimant to what has to be done to meet the requirements. But in this case such a response was plainly inadequate and did not provide any assistance at all to the claimant, who understandably remained wholly bemused why the forms had been rejected. It was not a helpful response, and in our view it did not in the circumstances constitute a proper "explanation" within the meaning of rule 3(1). There is no need for a detailed explanation; it can be very brief but it must identify the reason why the form has been rejected in a manner which enables the claimant to understand what has to be put right in any resubmitted claim.

The issues.

Does the EAT have jurisdiction?

19. Mr Mallett, counsel for the respondent, submits that the Secretary was exercising an administrative discretion and therefore no point of law is involved. This is a fundamental mis-apprehension. The decision may be administrative, but it must still be exercised in accordance with the law.
20. If the Secretary refused a claim for not being in the prescribed form when it obviously was, there would be a remedy. Here the appellant says that the reason is that the Secretary misunderstood what is meant by the requirement to lodge the claim in the prescribed form. If he did so, that would be an error of law. It is a constitutional outrage to suggest that a public official could act in breach of the powers conferred upon him and yet be subject to no legal control.
21. A fortiori is that the case where the effect is to deny a citizen the right of access to a court, a right explicitly recognised by Article 6 of the European Convention of Human Rights. The misguided notion that administrative or executive decisions are free from legal control was laid to rest a long time ago, as the burgeoning development of judicial review graphically demonstrates.
22. Mr Mallett also submits that the decision is not discretionary but is an executive one; the language is mandatory, directing him to refuse to accept claims not in the prescribed form. But the Secretary must first have a proper understanding of what the prescribed form requires before determining whether any particular form meets the criterion or not.
23. There can be no doubt therefore that the decisions must be reviewable by some court. The only issue then is whether it should be by way of an appeal on a point of law pursuant to s.11 of the Tribunals and Inquiries Act 1992, or whether the EAT has jurisdiction.
24. The appellant says that the Secretary acted in error of law and that on any sensible use of language this was a decision of the Tribunal that claims under relevant statutes should not be allowed to proceed. It therefore fell within the scope of s.21 of the Employment Tribunals Act 1996.
25. We agree that it is a decision; although it is perhaps more difficult to say that the decision of the Secretary is a decision of the Tribunal, since by section 4 of that Act the composition of the Tribunal is either the chairman or the full panel of chairman and two wing members. A decision of the Secretary would not appear to be capable of being described as a decision of the Tribunal.
26. Alternatively, the appellant submits that there is in any event a question of law arising in proceedings before the Tribunal and that therefore jurisdiction is conferred by the alternative limb in s.21 of the 1996 Act.
27. Mr Mallett submits that there are no proceedings before the Tribunal until the claim had been accepted and the Tribunal accepts that it has jurisdiction. He points to rule 3(7) which says that if a claim is not accepted it is treated as if it had never been sent. We do not accept that; in our view the concept of proceedings should be given a wide construction and extend to the situation where a claim has been lodged even if for one reason or another it is subsequently rejected.
28. Section 7 of the 1996 Act which confers the rule making power with respect to "proceedings" before the employment tribunals is plainly using the concept very broadly.
29. Similarly s.7(3ZA) itself envisages that it is the lodging of a form which initiates proceedings; it is not the ultimate acceptance that they are in a form which enables the Tribunal to go on to determine the case.
30. Furthermore, in our view many of the rules themselves are also premised on the assumption that there are proceedings on foot once claims have been lodged even if the tribunal subsequently considers that it has no jurisdiction: see, for example, rules 11 (applications in proceedings) and 57 (transfer of proceedings between Scotland and England and Wales.) We therefore reject this submission.
31. Finally, Mr Mallett submitted that in any event the proper route was review and not appeal. The claimant here should have sought to challenge the refusal to allow a review. It was not appropriate to mount an appeal against the decision itself.
32. We do not understand that argument. Review is an alternative to an appeal. Sometimes the EAT will require an appellant to pursue a review before pursuing the appeal because it will often be a more appropriate avenue of redress Here an application for review was made and refused. The appellant thereafter sought to challenge the substantive decision rather than the refusal to review, as he was entitled to do. (As we make clear in the Addendum, in fact a review was granted and allowed shortly before this judgment was issued.)
33. In any event, in our opinion it was plainly a perfectly appropriate course for the substantial merits of the case, which raises a point of some principle, to be heard on appeal. Accordingly we are fully satisfied that we have jurisdiction to hear this matter.

Should the claims have been rejected?

34. It is not suggested that in prescribing the forms, anything has specifically been said to draw the attention of potential claimants that the form should reach the Tribunal in precisely the same size as it was sent.
35. In our view, where faxing is provided as a legitimate way of lodging the claim and if a reduction in size is a natural or even frequent result of the faxing process – and we are told that it is – then any reduction in size must be deemed to have been an acceptable consequence of the process. Otherwise the ludicrous result is that you can fax the form but it will be rejected.
36. Second, we do not in any event think that size is naturally to be treated as an element of the essential features of the prescribed form such that if a form of a different size is used then it will not be considered a prescribed form.
37. Mr Mallett advanced an argument - indeed it seems to us the only conceivable argument - in support of the proposition that it does. He submitted that the purpose of providing these forms is both to achieve what he called a substantive purpose, namely to ensure that there was sufficient information for the Tribunal and the respondents to understand what claims were being brought; and secondly, that it had an administrative purpose, namely facilitating the administration of the claim. This, he submitted, included computerising the information included on the claim form. He contended that unless the appropriate size form was used then the administrative purpose would not be achieved.
38. We are not certain that this purpose can in fact be achieved from those forms that are prescribed, but neither counsel nor the court felt they had sufficient expertise in these matters.
39. However, even if it can be said that the interests of the administration provide a legitimate purpose for prescribing the forms to be used (and we have doubts about that) and that this was one of the reasons behind the reforms, we do not accept that this would have been obvious to any Tribunal user. It seems to us that part of the reason for defining the prescribed form, and providing the appropriate publicity, is precisely to clarify that kind of issue. If, for example, it is being said that the form must be received, even if faxed, so that it does not alter in size in any way, and that it will be rejected if it does not reach the tribunal in the appropriate size, that ought to be made crystal clear.
40. The right of an individual to take proceedings in a court should not be restricted or limited save where the claimant falls foul of restrictions which have been clearly and unambiguously spelt out. That has manifestly not been the case here.
41. We are confirmed in our approach by the decision of His Honour Judge Burke QC in Butlins Skylines v Bainham [2006] UKEAT-045. The facts of that case were very similar to this except they involved the lodging of a response rather than a claim form. (Not surprisingly the rules applicable to rejections of claims and responses are almost identical.) The claimant was alleging unfair dismissal and sex discrimination. The respondents submitted a response form in time but it was refused on the grounds that it was not in the prescribed form. It appears at that stage that a number of boxes which were on the form as sent were somehow removed when the form was downloaded from the computer. They would not have been removed had a different button been pressed to download the form. In short, it was the way matters were handled by the Tribunal itself which allegedly disqualified the respondent.
42. That particular refusal was not the subject of any legal proceedings because another form was sent, namely one that had been sent by the Secretary as the prescribed response when he had rejected the initial form. This was also rejected apparently for reasons similar to those in this case. It appears that the manner in which the information had been entered in the form caused the boxes on the form to be reduced. The tribunal could not thereafter scan it into their computer system. The result of the rejection was that the respondent was automatically barred from taking part in proceedings under rule 9. He sought a review but that was rejected.
43. One of the issues in the case was whether the Secretary was entitled to refuse to accept the second response. The judge held that he was not. He summarised the reason in paragraph 34 as follows:

"The second response was, however, submitted to the Tribunal in the prescribed form; and it is not suggested that it did not contain any of the information which the Rules required. The fact that the text inserted into the response was, as it was said to have been, such as to cause one or more of the boxes to be in a form which could not be scanned into the Tribunal's computer system was not, in my judgment, a valid reason for the rejection of that response. There is no requirement in the Rules as to the size or nature of the text which is inserted onto the response form by or on behalf of the Respondent or as to the ability of the Tribunal staff to scan the completed response into their computer system. The member of staff who rejected the second response had no good or valid reason in law for doing so and ought in law to have accepted it."

44. We entirely agree with that conclusion. We should add that we would have been minded to find that the appropriate form had been presented even if some relevant boxes had been missing, at least where they were in fact wholly immaterial to the particular claim. However, we did not hear argument about that and need not decide it.
45. It follows that the appeal must succeed.

Addendum

46. After the draft of this judgment was written, but before it was promulgated, we were informed that the rejection of the claim has been the subject of a review by the chairman, Mr Peters. We were not aware that he was seized of the matter. Giving short, clear and succinct reasons, he has sensibly accepted and upheld the application for review, essentially for the reasons we have set out. However, the appeal has not been withdrawn, and we consider that the issues raised are of sufficient practical significance that we should promulgate our judgment, albeit that in the event there is no need for any formal order to be made.