As soon as the claimant fills in the ET1 form (form needed to start a claim in the Employment Tribunal), and such form is received and is deemed to be in compliance with Rule 12(1) of the Employment Tribunal Rules, the claim can’t be rejected and must be heard.
Rule 12(1) of the Employment Tribunal Rules provides that an Employment Judge is to reject a claim, if any of those is true:
- The claim is one which the Tribunal has no jurisdiction to consider.
- The ACAS early conciliation requirements have not been complied with; or
- It is “in a form which cannot sensibly be responded to or is otherwise an abuse of the process.” (Rule 12(1)(b)).
In the William Jones case, the EAT Judge Laing J considered a case where a claim form had been submitted with the boxes for unfair dismissal and arrears of pay ticked, however the particulars of claim attached by the solicitor, related to a completely different case.
The employment tribunal staff referred the claim form to an Employment Judge who did not reject the claim. The EAT had “no hesitation in holding that no reasonable EJ properly directing himself in law could have concluded that an ET1 in this form could sensibly be responded to.” Accordingly, the claim should have been rejected under Rule 12(1)(b).
The EAT analysed the powers granted by the Employment Tribunals Act 1996 (the primary legislation) against the provisions enforced trough the Employment Tribunal Rules (implemented by way of secondary legislation)
The EAT concluded that:
- The primary legislation permits a claim to be rejected without hearing from the parties if, for example, it relates to a claim which the tribunal has no jurisdiction to consider.
- Here, it was clear (from the fact that the boxes for unfair dismissal and arrears of pay were ticked) that the claimant was seeking to bring claims over which the tribunal did have jurisdiction.
- The primary legislation does not permit claims to be rejected without hearing from the parties because it is in a form which cannot sensibly be responded to.
- Accordingly, Rule 12(1)(b) is ultra vires because it is not authorized by statute.
The consequence of this is that Rule 12(1)(b) of the Employment Tribunal Rules ceases to have any effect, and an employment judge cannot reject a claim form which purports to relate to a claim over which the tribunal has jurisdiction, even if it is in a form that the respondent cannot sensibly respond to.
This will with no doubt, create a further burden on the taxpayers which are responsible in part for the funding of the Employment Tribunal and EAT services, but most importantly, this will mean that for every ET1 submitted by an upset employee, the employer will occur in to legal expenses regardless of the merits of the claim.
On the other hand, it can be easily argued that this recent decision, may balance the effects of the 2013 fees introduction.
The ET was established as a cost effective, “easy to use”, free service opened to anyone looking to enforce his legal rights against his employer. However, a complex scheme of fees was introduced in July 2013 by the Lord Chancellor.
The Lord Chancellor is empowered by statute to introduce fees for anything deal with by an “added tribunal” by emanating an Order.
The ET fees were in fact implemented by the Lord Chancellor via the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893)(“the Fees Order”), in July 2013.
The enforcement of the fees has been followed by an astonishing decrease in the number of cases the ET receives. The MoJ reports that up to June 2015 there has been a decrease of 67% in claims brought by a single person, and a 69% decrease in claims brought from more than one person (multiple claims).
The numbers are staggering, and is clear the fact that: “so large a decline is unlikely to be accounted for entirely by cases of “won’t pay” and that it must also reflect at least some cases of “can’t pay”.” Underhill LJ has stated in the infamous Unison case (R. (on the application of Unison) v Lord Chancellor [2015] EWCA Civ 935 per Lord Justice Underhill at para. 68).
Underhill LJ went on, and in regards to an internal government review of the fees regime, had noted that the decline in claims was “sufficiently startling to merit a very full and careful analysis of its causes”.
Such decline in claims, has with no doubt, benefited the employers: Alan Chalmers, in one of his articles, suggested that employers may decide, for example, to not pay a departing employee their accrued holiday pay, as due to the fees lodging a claim may be more expensive then the money owed.
He goes on suggesting that such a conduct in the long run may put the employers acting unlawfully in a better position than the honest employers, as they will be saving money to reinvest in the business.
Furthermore, he also suggested that: if the tribunal system is perceived as inaccessible, employees will turn to other avenues to protect their workplace rights. Given the increasing inability to seek redress through the tribunal system, union membership and activism it is likely to increase.
However, following the decision in the William Jones School case, there is no doubt that the tribunal system may be perceived more accessible by employees therefore, once again rebalancing the bargain of power between employee and employer, and further detaching from the master-servant obsolete doctrine.
Nonetheless, all the papers published by the MoJ, show a decline in the ET claims, due to the introduction of fees.
As much as the decision in the William Jones School case may be able to give some power back to the employees, the ET fees are here to stay, and therefore it can be argued that this recent decision, may have no effect neither on the quantity of the claims lodged.
Nevertheless, scrapping rule 12(1)(b), may have an impact on the quality of the claims lodged, which may see an increase in employee pursuing weak or vexatious claims, and respondents being obliged to respond.
