United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS KERRY SMITH (of Counsel) Instructed by: Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield South Yorkshire S1 4QL
For the First Respondent For the Second Respondent	MR NICHOLAS SIDDALL (of Counsel) Instructed by: Messrs Watson Esam Solicitors 18 Paradise Square Sheffield South Yorkshire S1 1TY MR ANDREW SUGARMAN (of Counsel) Instructed by: SGH Solicitors LLP One America Square Crosswall London EC3N 2SG


 


SUMMARY

PRACTICE & PROCEDURE

APPLICATION/CLAIM

ET1 submitted with a fully pleaded case identifying two Claimants – however ET1a omitted. Employment Judge held that no valid claim presented by second Claimant – appeal allowed – principles in Hamling v Coxlease School applied; observations on procedure to be followed where Tribunal staff do not appreciate that a claim has been made – review application not necessary.


 


HIS HONOUR JUDGE RICHARDSON

1. In Butlins Skyline Ltd v Beynon [2007] ICR 121 at para 21 HH Judge Burke QC said –

"It is well known that certain aspect of the 2004 Rules have created considerable difficulties for tribunals and parties to tribunal proceedings. Chairmen have been confronted by a number of situations in which one party or the other appears, pursuant to the Rules, because of some failure or supposed failure to comply strictly with the provisions of the Rules, to be in a position in which he or she is unable to pursue a claim or to defend a claim on the merits. As a result, a number of decisions have been made by the Employment Appeal Tribunal which throw light on the manner in which some, at least, of the difficulties which have arisen can and should be resolved"

2. That case was decided in February 2006. Already, in June 2005, the President of the Employment Appeal Tribunal had called for the Rules to be looked at again: see Richardson v U Mole [2005] IRLR 668 at para 2. As this case shows, certain aspects of the 2004 Rules continue to cause difficulty; they have the potential, in the light of the tight time limits applicable to many forms of employment claim, to cause injustice; they certainly give rise to much arid litigation and consequent delay.
3. This is an appeal by Unison, the trade union, against a judgment of the Employment Tribunal (Employment Judge Williams) dated 19 December 2008. Unison sought to bring a claim under regulations 13-15 of the Transfer of Undertaking (Protection of Employment) Regulations 2006 ("TUPE"). Judge Williams held that Unison had not presented any valid claim; and he refused leave to amend an existing claim form by another party to add Unison as a claimant. Unison challenges those decisions. The two potential respondents are the National Probation Service South Yorkshire ("the NPS") and Addaction. They seek to uphold the decisions.
4. In order to understand the story which follows it is necessary to know one basic fact about current Employment Tribunal procedure. Tribunal claims are started by a form known as ET1. The first page is designed to be completed with the details of the parties. But the design is such that there is room to set out the details of only one claimant. If there are additional claimants a separate sheet, known as a Multiple Claim Form, is used – form ET1a.

The Factual Background

5. The Sheffield Primary Care Trust ("the PCT") is responsible for a drug intervention programme ("the DIP"). Until April 2008 the PCT commissioned two organisations to run that programme. One organisation was the NPS. The other was an organisation known as Turning Point. Prior to April 2008, however, the work involved in the DIP was put out to tender. A contract was awarded to Addaction. Employees who formerly worked for NPS were transferred pursuant to TUPE to work for Addaction. It is Unison's case that it was a recognised trade union for the employees for the purposes of regulation 13 of TUPE and that there was a breach of the duty to inform and consult imposed by that statutory provision.
6. One employee who was transferred was Miss Alison Fenton, an office manager. It has been alleged on her behalf that following the transfer she was downgraded, subjected to detrimental terms and conditions, and placed on a protected salary.
7. By May 2008 Thompsons, who are well known union solicitors, had been instructed on behalf of Unison and Miss Fenton. They wrote letters dated 19 June 2008 to the PCT and to Addaction making complaints on behalf of Miss Fenton and Unison. The letters both alleged breaches of regulation 13 of TUPE. The letter to the PCT told them that they were a named respondent in respect of a claim alleging such breaches, which they would be receiving shortly.
8. On 25 June 2008 Thompsons presented an ET1. There can be no doubt that they intended to present it on behalf of both Miss Fenton and Unison. NPS and Addaction were named respondents together with the PCT, although no claim has been pursued against the PCT. There are boxes on the ET1 for certain common types of claim, such as unfair dismissal, discrimination and redundancy payments. Then Box 9 specifically asks for information about complaints not covered elsewhere in the form. It was completed with the following words –

"Unison – reg 13 of TUPE claim. See attached details of claim".

9. The attached details could not be clearer. They were typed, run to four pages and were signed by Thompsons. They were headed with the name of two Claimants – Unison and Miss Fenton. They set out the factual basis of Unison's case and claimed a declaration that there had been a breach of regulation 13, together with compensation. In other words, Unison's case was fully pleaded.
10. As we have seen, the first page of the ET1 only allowed for the details of one Claimant to be included. Miss Fenton's details were included on that page. Thompson's details were included in Box 12 as the appointed representative. But the Tribunal did not receive an ET1a giving the name and details of Unison. This is the cause of all the trouble which has followed. Precisely why no ET1a was received is unclear, but in view of the details of claim which Thompsons gave it can only have been oversight or some kind of accident.
11. What happened thereafter can be described quite briefly. The Tribunal staff wrote notifying the parties that Miss Fenton's claim was accepted (subject to an exception which is not material for present purposes). The Tribunal staff did not, however, acknowledge the existence of any claim by Unison. They wrote no letter either accepting or rejecting it. They did not refer the matter under rule 3(3) to any Employment Judge.
12. When NPS and Addaction were served with the claim they both instructed solicitors. On behalf of NPS a response was filed which took the point that Unison's claim had not been accepted, but went on in the alternative to plead fully to Unison's case in the alternative. On behalf of Addaction a response was filed which ignored the claim of Unison altogether.
13. Correspondence ensued. No decision was taken whether to accept or reject a claim by Unison. An Employment Judge wisely convened a pre hearing review to determine, among other matters, whether there was a competent claim. Unison sought a determination that it had presented a valid claim; and if, contrary to its submission on that point, the claim was presented only by Miss Fenton then it sought an order amending the claim to add it as a claimant.

The Rules of Procedure

14. Employment Tribunal procedure is governed by the Employment Tribunals (Constitution and Rules etc) Regulations 2004 ("the 2004 Regulations"). In particular claims of the kind which Miss Fenton and Unison sought to raise are governed by Schedule 1 of those Regulations, which contain the Employment Tribunal Rules of Procedure ("the Rules").
15. The 2004 Regulations provide for an overriding objective to apply to all aspects of procedure under the Rules. Indeed the overriding objective applies when the Rules are interpreted. Reg 3 provides

"3. Overriding objective

(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and [Employment Judges] to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable:-

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense

(3) A tribunal or [Employment Judge] shall seek to give effect to the overriding objective when it or he:

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6]

(4) The parties shall assist the tribunal or the [Employment Judge] to further the overriding objective."

16. The initial stages of a claim to the Tribunal of the kind with which this case is concerned are the subject of rules 1-3.
17. Rule 1 is headed "Starting a Claim". Subject to immaterial exceptions, rule 1(3) provides that a claim must be presented on a claim form which has been prescribed by the Secretary of State in accordance with regulation 14 of the 2004 Regulations. The ET1 and ET1a have been prescribed.
18. Rule 1(1) provides that the details of the claim must be presented in writing. Rule 1(4) sets out details which must be provided. They include the name and address of each claimant: see rule 1(4)(a) and (b). Rule 1(7) provides that two or more claimants may present their claims in the same document if they arise out of the same set of facts.
19. Rule 2 is headed "What the Tribunal does after receiving the claim". Rule 2(1) provides as follows –

"(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."

20. Rule 3 is headed "When the claim will not be accepted by the Secretary". I shall set out this rule in its entirety, save for provisions relating to section 32 of the Employment Act 2002, now repealed and irrelevant to this appeal. It provides as follows –

"(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.

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

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

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

(c) ..

(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 [an Employment Judge]. The [Employment Judge] 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 [Employment Judge] 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 [Employment Judge] 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 I 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.

(6) …

(7) Except for the purposes of paragraph …(8) or any appeal to the Employment Appeal Tribunal, where [an Employment Judge] 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 [an Employment Judge] not to accept a claim or part of one may be reviewed in accordance with rules 34 to 36. If the result of such a 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).

(9) A decision to accept or not to accept a claim or part of one shall not bind any future tribunal or [Employment Judge] where any of the issues listed in paragraph (2) fall to be determined later in the proceedings.

(10) Except in rule 34 (review of other judgments and decisions), all references to a claim in the remainder of these rules are to be read as references to only part of the claim which has been accepted."

Those are the rules most closely engaged by this appeal.

21. For the sake of completeness I should record that the Tribunal's power to allow amendments is set out in rule 10(2)(q): it is a specific example of the Tribunal's wide powers of case management afforded by rule 10; and the Tribunal's power to review a decision not to accept a claim is contained in rule 34(1)(a) which so far as material provides –

"(1) Parties may apply to have certain judgments and decisions made by a tribunal or [an Employment Judge] reviewed under rules 34 to 36. Those judgments and decisions are-

(a) a decision not to accept a claim, response or counterclaim…"

The Employment Judge's reasons

22. The Employment Judge held that no claim was presented by Unison in June 2008. The essential part of his reasoning is as follows:

"43. Is there a competent claim before the Tribunal? I say not. Whilst conscious of the judgment in Hamling v Coxlease and in Richardson v U Mole Limited [2005] IRLR 668 it seems to me that the administrative staff had no reason to believe that UNISON was making a claim. There was no acceptance of any such claim and that would have been, I suggest, apparent to Thompsons even if at that stage they may have thought that they had sent details relating to UNISON on the claim form. They were never received by the Tribunal, not that is until they accompanied a later letter in August from those solicitors. I take the view that that should have triggered a review application, which has never been made.

In my judgment therefore the Tribunal has no claim before it from UNISON because quite simply the required information is not contained within it. No such claim was ever accepted and no review application has ever been made in respect of it. As is pointed out by Counsel for the Respondents the review procedures set out what has to be done. Grounds for review have to be set out and UNISON's solicitors have simply not done this.

44. There is therefore no competent claim before the Tribunal….."

23. Further, on the question of amendment, he said:

"…In so far as the application to amend is concerned I am not prepared to allow that, it is out of time and I can see no excuse for it being out of time and to allow it in now would, I believe, be more prejudicial to the Respondents who, as Mr Sugarman rightly said, might well have to bear consequences because the Section 15 (TUPE) claim would relate to several employees. Further, the Union's claim is different, quite different to the ones by Miss Fenton which Miss Smith seeks to amend."

Submissions

24. I will summarise briefly the submissions of the parties on the question whether the ET1 ought to have been accepted as it stood as a claim on behalf of Unison.
25. On behalf of Unison Ms Smith submits that the Employment Judge ought to have accepted the ET1 as a claim validly presented by Unison in June 2008.
26. In the first instance, she submits, it was for the Secretary (in practice the Tribunal staff) to consider the claim: see rule 2. If the Secretary did not accept it the claim should be rejected if rule 3(1) was applicable, and otherwise referred to the judge for a decision as to whether it should be allowed to proceed: see rule 3(2) and (3). That had never been done. There should not be a review under rule 34(1) until there had been a decision of a Tribunal or Judge.
27. She submitted that the Employment Judge ought to have decided whether to accept the claim or not. The pre-hearing review had been convened for that among other purposes. The Employment Judge had to exercise judgment in determining whether to accept or reject a claim having regard to the overriding objective and in particular whether an omission of detail was relevant and material in the context of the particular claim. She referred to and relied on a line of cases culminating in Hamling v Coxlease School Ltd [2007] IRLR 8.
28. Applying those principles, she submits that the Employment Judge ought to have accepted the claim. It was entirely plain from the ET1 with its attached, fully pleaded, details that a claim was being advanced by Unison and that Thompsons were representing Unison. The omission of the ET1a caused no prejudice to the respondents.
29. On behalf of NPS and Addaction it is submitted by Mr Siddall and Mr Sugarman that the Employment Judge was correct to conclude that there was no competent claim. It was submitted that the omission of the name of Unison was a fundamental omission; that the ET1a was the form intended to identify any additional claimants and that nothing in the ET1, however clear it might be, would suffice. Emphasis was placed on the mandatory language of the Rules. It was submitted that the staff could not be expected, as the Employment Judge said, to have appreciated that a claim was being made by Unison. In these circumstances the Employment Judge was correct to conclude there was no claim, or no properly presented claim. At all events, it was submitted that his conclusion, even if I disagree with it, was not perverse.
30. It was further submitted that Unison could only obtain a decision in their favour by applying formally for review, or by appealing to the Employment Appeal Tribunal. The argument went as follows. The claim had effectively been rejected by the Secretary. There was no room for a state where the claim was neither accepted nor rejected – as Mr Siddall put it, hovering in a procedural limbo. There was therefore a decision, and even if it was an administrative decision review or appeal was the appropriate remedy. Reliance was placed, by way of analogy, on a decision of the Appeal Tribunal (Judge Burke QC) in respect of rule 6(1): Butlins Skyline Ltd v Beynon [2007] ICR 121 and on Grant v In 2 Focus Sales Development Services Ltd [2006] UKEAT/0310/06 (Elias J). It was therefore submitted that, no review having been applied for, the claim indeed stood rejected. The Employment Judge was correct in this respect also.

Conclusions

31. There are now many judgments of the Appeal Tribunal dealing with aspects of the Tribunal's approach to rules 1-3 and review of those rules. It will suffice at the outset to mention one of them. In Hamling v Coxlease School Ltd [2007] IRLR 8 solicitors on behalf of a claimant faxed her claim form to the Tribunal but omitted her address, while giving the solicitors' full address. Her claim was rejected. On review a Chairman held that there was no room for the exercise of judgment: the requirement of the rules was clear and unambiguous. The Appeal Tribunal (Mr Recorder Luba QC sitting alone) allowed the appeal.
32. Building on earlier authorities, Mr Recorder Luba QC said –

"35. On a true construction of the Rules, I am not satisfied that the exercise of consideration by a chairman, on a referral of a claim form by the secretary, is confined to the mechanistic exercise of checking-off the list of required information in rule 1(4) against the content of the form. The rules envisage both an administrative scrutiny (by the Secretary) and a judicial scrutiny (by the chairman). Obviously, the chairman's role under rule 3(3) envisages (in part) a double-check as to whether there has been any omission at all but it goes further than that. It is a truly judicial function. As HHJ Prophet has said in Grimmer v KLM Cityhopper UK [2005] IRLR 595 (at [8]):

'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 i.e. an employment tribunal. Most chairmen would not wish to feel forced to do so without there being a very good reason.'

……..

40. In the instant case, therefore, the chairman ought to have asked himself both whether the omission of the claimant's address from the present claim form was (1) a 'relevant' omission and (2) a 'material' or overriding omission. In asking and answering both questions, the chairman was required to have regard to the overriding objective in reg. 3. That emerges plainly again from HHJ Prophet's judgment in Grimmer (at paragraph [11]) itself adopted and applied HHJ Burke QC in Butlins Skyline. It also echoes what was said by Lord Woolf MR in Secretary of State v Ravichandran [2000] 1 WLR at 359:

'Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issues arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 1 QB 303, applied by the House of Lords in London & Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182.'"

33. It is convenient first to ask: did the ET1 form which Thompsons lodged with the Tribunal contain a claim by Unison? To my mind it plainly did: I have already described the way in which Box 9 was completed and the fully detailed pleading to which it referred. Unison's name was given. The solicitors' details were given. Of the details required by rule 1 only Unison's address was omitted.
34. It is true that the ET1a form was missing. This is unfortunate: in the absence of the form it is not surprising that Tribunal staff did not pick up that Unison was making the claim. The Employment Judge was plainly much impressed by the fact that in the absence of the form the administrative staff had no reason to believe that Unison was making a claim. But the administrative staff of the Tribunal are gatekeepers under the Rules, and no more. Only in the clearest cases, of the kind to which rule 3(1) applies, are they to reject a claim by their own decision. Ultimately rules 3(2) and (3) envisages that problem cases will come before a Judge. To my mind a Judge would have not the slightest difficulty seeing from the ET1 and attached details that Unison was making a claim.
35. It is convenient next to ask: did the Secretary, that is in practice the Tribunal staff, reject the claim under rule 3(1)? To my mind, the answer is plain. The Secretary did not do so. Nor would I have expected him to do so. Rule 3(1) applies where no prescribed form has been used. Here a prescribed form – the ET1 - was used. All that was missing was one additional prescribed page – the ET1a.
36. It follows, accordingly, that Unison's claim remained for some time in a state where it had been presented but neither formally accepted or rejected. To my mind the Rules clearly envisage that there may be a period during which a claim has neither been accepted nor rejected. No doubt in most cases the period will be very short; but there may be cases where a file is lost, or where, as here, it was not appreciated or noticed that a particular claimant existed. I do not accept that the Rules envisage that inaction – whether by reason of misunderstanding or some administrative failing – will of itself be a rejection of a claim.
37. Where, as here, a claim has neither been accepted nor rejected, I do not think that the Rules envisage that the claimant's primary remedy is a review. There will not have been a decision to review. A litigant in person will have no idea that review is or might be his remedy. It would add an unnecessary further layer of procedure. It would not be in accordance with the overriding objective for review or appeal to be the first port of call in such circumstances.
38. The Rules to my mind envisage that when a Claimant alerts the Secretary to the existence of a claim which it is said that the Secretary has overlooked he will deal with the matter in accordance with rule 3(1)-(3). If there is no ET1 he will apply rule 3(1). If there is an ET1, then to the extent that he does not accept the ET1 he will apply rule 3(2)-(3), and to the extent that he does not accept the ET1, he will refer it to an Employment Judge. If it happens to be an Employment Judge who first appreciates there is an argument that a claim is being made (perhaps because correspondence is given to him to consider), he will no doubt alert the Secretary to the position. If for any reason the Secretary remained inert, the Employment Judge would have ample power pursuant to rule 10 to require the file to be referred to him; and he may then decide whether the claim should be accepted or rejected wholly or in part. In an unusual case he may give a case management direction enabling the matter to be resolved at a hearing, as indeed seems to have occurred here. See, for example, rule 10(2)(o). To my mind the Rules envisage that, save in cases to which rule 3(1) applies, if a claim is not accepted by the Secretary the Employment Judge will take a decision under rule 3(3)-(5) without any requirement for a review application. The intention of the Rules is that review will follow the taking of a decision by the Employment Judge.
39. I therefore disagree with the Employment Judge, who thought that a review application by Unison was required.
40. I accept, as Mr Siddall and Mr Sugarman submitted, that a decision of the Secretary may be the subject of a review: see Grant v In 2 Focus Sales Development Services Ltd [2006] UKEAT/0310/06 (Elias J) (a case concerning rule 3(1)) and Butlins Skyline Ltd v Beynon (above) (a case concerning rule 6(1)). But the Rules make no provision for any procedure where the Secretary has rejected a claim or response in the limited class of case to which those provisions apply. In other cases of rejection the Rules plainly envisage a decision by a Judge before a review.
41. I turn then to the question whether the Employment Judge ought to have decided that the claim should be accepted. I have already expressed my view that all the required details were within the ET1 except for the address of Unison. The Employment Judge ought to have adopted the approach set out in Hamling v Coxlease School Ltd. He did not do so. Once that approach is adopted, there is to my mind only one just answer. All the required details of Unison's claim, except for the address, were in the ET1 and the attached form. The solicitor's address was given. In the circumstances, having regard to the overriding objective, the claim by Unison should be accepted. The omission of the ET1a was not a material omission, having regard to the contents of the ET1.
42. In those circumstances the appeal will be allowed. The claim by Unison will be accepted.

Postscript

43. There was an alternative ground of appeal that the Employment Judge ought to have permitted amendment. Skeleton arguments on behalf of the parties addressed this question. However for practical purposes oral argument concentrated first on the question whether the claim should have been accepted by the Employment Judge. When, after hearing argument, I expressed my view on that question, counsel sensibly told me that they would not seek to address oral argument before me on the question of amendment, because it would not be the ground of my decision. I propose to do no more than note what the essential submissions were and make one comment.
44. Ms Smith submits that the Tribunal had a wide discretion to permit amendment. She relied, of course, on the well-known decision of the Appeal Tribunal in Selkent Bus Co v Moore [1996] ICR 836 (Mummery P). She placed particular reliance on two recent decisions of the Appeal Tribunal: TGWU v Safeway Stores [2007] UKEAT/0092/07 and Evershed v New Star Asset Management [2009] UKEAT/0249/09. In the light of the considerations which the Appeal Tribunal took into account in those cases, she submitted that the Employment Judge's approach was plainly flawed.
45. On behalf of NPS and Addaction, Mr Sidall and Mr Sugarman both submit that the Employment Judge exercised his discretion in a permissible manner. They emphasise well-known principles limiting the extent to which an appellate court will interfere with the exercise of a discretion – particularly where, as here, there is an appeal only on a question of law. They further submit that even if the Employment Judge's exercise of discretion could be impugned the matter would have to be remitted. On this last question, they submitted that the "heterodox" (per Underhill J) approach taken by the Appeal Tribunal in Safeway Stores was not the correct approach.
46. As I say, having noted these submissions, I propose to say nothing about them, except that the approach of the Employment Judge appears to be different from the approach taken in Safeway Stores and in Evershed. Since I have reached my decision on another ground, I do not think it would be helpful to comment further.