Unison & Anor v National Probation Service South Yorkshire & Anor

Employment Tribunal claim forms must be considered judicially, not by mechanical checklist. Where the material identifying a claimant and pleading the claim appears in the ET1 and attached particulars, omission of an additional prescribed form is not necessarily material. The question is whether the omission justifies rejection in the circumstances, applying the overriding objective.

Where a claim has been presented but neither accepted nor rejected, administrative inaction does not amount to rejection. The claimant need not first seek review. The Secretary must act under rule 3, and any disputed rejection outside rule 3(1) must be referred to an Employment Judge.

Unison and Miss Fenton presented an ET1 concerning alleged breaches of regulations 13 to 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The attached particulars identified both claimants and fully pleaded Unison’s claim, but the separate ET1a giving Unison’s details was not received.

The Tribunal acknowledged Miss Fenton’s claim but did not accept or reject any claim by Unison. At a pre-hearing review, the Employment Judge held that Unison had presented no competent claim and refused amendment. The central issues were whether the ET1 contained a claim by Unison and whether a review application was required.

1. Appeal allowed. Unison’s claim was accepted.
2. The ET1 and attached particulars plainly identified Unison as a claimant and contained a fully pleaded claim. Only Unison’s address was omitted. The absence of the ET1a did not prevent the document from containing a claim.
3. Under the Employment Tribunals (Constitution and Rules etc) Regulations 2004, the Secretary is an administrative gatekeeper. Except in the clear case governed by rule 3(1), a disputed omission must be considered under rule 3(2) and referred to an Employment Judge under rule 3(3).
4. The Rules contemplate that a claim may remain presented but temporarily neither accepted nor rejected. Administrative inaction, misunderstanding or failure to notice a claimant does not itself constitute rejection.
5. A review under rule 34 is ordinarily available only after a decision has been made. Requiring review as the first remedy where no acceptance or rejection has occurred would add unnecessary procedure and conflict with the overriding objective in regulation 3.
6. Following Hamling v Coxlease School Ltd, the Employment Judge had to assess whether the omission was relevant and material, rather than merely check whether every prescribed detail appeared. Applying that approach, the omission of the ET1a was not material, because the ET1 and particulars made Unison’s claim clear and caused no relevant prejudice.
7. The alternative amendment issue was not decided.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Tribunal’s judgment dated 19 December 2008. Unison’s claim was accepted.