Higgins v Home Office

A claim should be rejected under Rule 12 only in a plain and obvious case. Where the pleading is unclear, the claimant is unrepresented, or material factual issues arise, the Employment Tribunal should ordinarily use Rule 27, allowing representations before dismissal.

An unfair dismissal claim presented out of time is not necessarily an abuse of process, because the Tribunal may extend time where it was not reasonably practicable to present the claim within the statutory period. A Tribunal must have regard to known disability and must give adequate, proportionate reasons for rejection.

The claimant, formerly employed by the Home Office, lodged an ET1 almost six years after her employment ended. The form was poorly structured but identified constructive dismissal, unfair dismissal and compensation, while also including an inadmissible claim for compensation for her mother.

An Employment Judge rejected the claim under Rule 12 of the Employment Tribunals Rules of Procedure 2013, stating that it was out of time, sought remedies unavailable to the Tribunal and did not appear to claim unfair dismissal. Reconsideration was refused. The appeal concerned whether those matters justified rejection without a hearing.

1. Appeal allowed. The Rule 12 rejection was set aside and the matter was remitted to the Employment Tribunal for reconsideration by a different Employment Judge.
2. Rule 12 has an effect equivalent to striking out, but operates without a hearing or representations from the claimant. It is therefore a drastic procedure and should be reserved for the most plain and obvious cases. Borderline cases, unclear pleadings and muddled claims by litigants in person should ordinarily be dealt with under Rule 27.
3. The ET1, read fairly, identified unfair constructive dismissal and sought compensation and re-engagement. The Employment Judge was therefore wrong to conclude that no claim for unfair dismissal had been made and that no remedy within the Tribunal’s jurisdiction had been sought. The inadmissible claim concerning the claimant’s mother did not justify rejecting the properly arguable claims.
4. Under section 111(2)(b) of the Employment Rights Act 1996, the Tribunal may extend time where it was not reasonably practicable to present an unfair dismissal claim within the three-month period. Presentation out of time is not, without more, an abuse of process. The claimant’s mental-health evidence raised a material question as to reasonable practicability and capacity, which required proper consideration.
5. The overriding objective requires the Tribunal to have regard to a disability of which it is aware. Appropriate assistance may also be required for a litigant in person, while preserving impartiality. The reasons given for rejection were inadequate because they stated conclusions without explaining why the ET1 was an abuse of process, contrary to Rule 62.
6. The Employment Judge should reconsider whether Rule 27, or another appropriate procedure, should be used. The claimant should be able to deploy medical evidence and make representations concerning time, capacity and the conduct of proceedings.

• Employment Appeal Tribunal: allowed the appeal, set aside the rejection dated 10 March 2014 and remitted the question of rejection to another Employment Judge.
• Employment Tribunal: rejected the ET1 under Rule 12 and refused reconsideration.