May v. Greenwich Council

A claim form should be accepted where it contains the required information and is sufficiently legible to be read in the original. Partial difficulty in reading does not itself justify rejection under rule 3(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Rejection for illegibility operates in substance as a proto-strike-out and must be approached proportionately, consistently with the overriding objective. Where part of a claim is genuinely unreadable, the tribunal should ordinarily accept the readable claim and require a clearer copy within a defined period, backed where necessary by sanctions. It should not reject the whole claim where the required details are present.

The claimant presented an ET1 to the Employment Tribunal on 26 November 2009 containing claims including unfair dismissal, breach of contract, redundancy payment, failure to provide written terms, race discrimination and victimisation. The tribunal returned the form on 30 November 2009, stating that its details were illegible. The claimant appealed, principally contending that the rejection was unsustainable and left him exposed to a limitation problem. The Employment Appeal Tribunal, sitting as a single judge, considered whether the tribunal had power under rule 3(2) to reject the form and whether its decision was proportionate and consistent with the overriding objective.

1. Appeal allowed. The Employment Tribunal’s conclusion that the ET1 was illegible was unsustainable. Having inspected the original, the Employment Appeal Tribunal found that it could be read without a magnifying glass. At most, parts were difficult to read.
2. Rule 3(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permitted rejection only where the claim lacked required information or the tribunal lacked jurisdiction. The rule could apply to illegibility only if relevant details required by Schedule 1, paragraph 1, including details of the claim, were genuinely unreadable. The fact that a document was difficult to read did not establish that the information had not been provided.
3. Illegibility of part of a claim would not justify rejection of the entire claim where the remaining required details were readable. The tribunal should identify the unreadable parts and accept the balance.
4. Rejection in these circumstances was in substance a proto-strike-out. The overriding objective required a proportionate and fair response, particularly where rejection might prevent a claimant from presenting a clearer copy without an extension-of-time application. The proper course was ordinarily to require a more readable copy within a defined period and, if necessary, impose sanctions for non-compliance.
5. Following the approach in Coutinho v Rank Nemo (DMS) Ltd, the Tribunal directed that the claim be accepted. The claimant was also directed to produce a typed copy of the ET1 without amendment or alteration. No view was expressed on the merits of any claim.

• Employment Tribunal, Croydon: rejected the ET1 on 30 November 2009 as illegible.
• Employment Appeal Tribunal: allowed the appeal and directed that the claim be accepted.