Commissioner of Police of The Metropolis v Rixon

Rule 3(9) does not prevent an Employment Judge, at a later pre-hearing review, from reconsidering whether a claim was validly presented merely because an earlier judge declined to accept it. The provision allows an apparently closed administrative or preliminary decision to be revisited where the relevant issue falls to be determined later in the proceedings. This safeguard enables the claimant to explain the circumstances surrounding an alleged defect. Where the Employment Judge has made clear that the claim would have been held valid if the issue had been approached correctly, an appellate tribunal may uphold the decision without remittal if the result is unarguably correct.

The claimant, a serving police officer, presented an online claim alleging detriments for making a protected disclosure. He omitted his name and address because he had been granted anonymity in connection with a coroner’s inquest, and supplied the details of a Police Federation representative instead. The claim was not accepted under the Employment Tribunal rules. A Regional Employment Judge confirmed that decision.

At a later pre-hearing review, the Employment Judge treated the earlier ruling as binding and considered whether it had been reasonably practicable to present the claim in time under section 111 of the Employment Rights Act 1996. She found for the claimant. The central issue on appeal was whether rule 3(9) prevented her from reconsidering the validity of the original claim.

1. Appeal dismissed. The Employment Judge had erred in treating the earlier decision under rule 3 as preventing her from reconsidering whether the claim had been validly presented.
2. Rule 3(9) provides that a decision not to accept a claim does not bind a future Employment Judge where an issue listed in rule 3(2) falls to be determined later in the proceedings. The provision permits reconsideration at a pre-hearing review. Its purpose is to provide an elementary procedural safeguard, allowing the claimant an opportunity to explain matters that may not have been ventilated when the claim was rejected administratively or on an earlier preliminary determination.
3. The acceptance procedure may operate as a preliminary rejection of a claim without the safeguards of a full hearing. The approach discussed in Coutinho v Rank Nemo (DMS) Ltd [2009] ICR 1296, including taking the claimant’s form at face value at the acceptance stage, illustrated the importance of those safeguards. The description of the procedure in Chowles t/a Granary Pine v West was also noted.
4. The error did not affect the result. The Employment Judge had found for the claimant on reasonable practicability and had made her view clear. It was accepted that, had she considered the validity issue afresh, she would have held that the claim was validly presented on 12 June 2009. The decision was therefore unarguably right notwithstanding the misdirection, and no remittal or determination of the further arguments, including those based on Article 6 of the European Convention on Human Rights, was necessary.

• Employment Appeal Tribunal: The appeal from the Employment Judge’s decision was dismissed. The Tribunal held that rule 3(9) did not prevent reconsideration of the validity of the claim and that the result was unarguably correct.