Plank v. Atkins Ltd

Under Rule 3(8) of the Employment Appeal Tribunal Rules 1993, an appellant may lodge one fresh Notice of Appeal after a Rule 3(7) rejection. The fresh notice may repeat the original grounds, but repetition may constitute an abuse of process and justify rejection under Rule 3(7)(b). A fresh notice rejected under that provision remains subject to the Rule 3(10) right to an oral hearing, provided the application is made within 28 days. Case management directions identifying issues for a pre-hearing review fall within the Employment Judge’s wide discretion where they concern limitation, res judicata, abuse of process, or the prospects of success.

The appellant, who had brought proceedings before the Bristol Employment Tribunal, appealed against case management directions requiring issues concerning limitation, res judicata, abuse of process, strike-out, prospects of success and a deposit order to be considered at a pre-hearing review.

The President rejected the first Notice of Appeal under Rule 3(7). The appellant lodged a second notice with substantially identical grounds. The President rejected it as not being a fresh notice for Rule 3(8) purposes and as an abuse of process. The appellant then sought a Rule 3(10) hearing. The central issues were whether the second notice was fresh and whether the Rule 3(10) application could proceed.

1. The second document was a fresh Notice of Appeal for the purposes of Rule 3(8). That rule refers to a fresh Notice of Appeal, rather than fresh grounds of appeal. Substantially identical grounds did not prevent the document from being fresh, although submitting the same grounds was liable to constitute an abuse of process under Rule 3(7)(b).

2. Rule 3(8) permits only one fresh Notice of Appeal. An appellant whose appeal has been rejected under Rule 3(7) already has an absolute right to a Rule 3(10) hearing, subject to the applicable 28-day time limit, and may amend the original grounds for that hearing.

3. By virtue of Rule 3(9), a fresh notice is treated as an original Notice of Appeal. The Rule 3(7) procedure therefore applies to its rejection, and the appellant retains the right to a Rule 3(10) hearing following a rejection of the fresh notice, provided the application is made within 28 days.

4. The appeal against the Employment Judge’s directions was wholly misconceived. The directions merely put the pleadings in order and identified issues for determination at a pre-hearing review. Questions of limitation and relitigation were properly left to the Employment Tribunal, preferably at a pre-hearing review, and the directions fell within the wide case-management discretion of an Employment Judge.

5. The Rule 3(10) application was dismissed, together with the underlying appeal.

• Employment Appeal Tribunal: The President rejected the first Notice of Appeal under Rule 3(7), rejected the second notice as abusive, and directed a hearing on whether it was a fresh notice and, if so, on the Rule 3(10) application. The Tribunal held that the second notice was fresh but dismissed the Rule 3(10) application and the underlying appeal.
• Bristol Employment Tribunal: Case management directions were made at a case management discussion, listing limitation, res judicata, abuse of process, strike-out, prospects of success and deposit-order issues for a pre-hearing review.