Baisley v South Lanarkshire Council (Practice and Procedure)

A rejection for non-payment of an employment tribunal fee under Rule 11(3) is a judicial act of the Tribunal, although it may be communicated through administrative staff. Rule 6 cannot relieve the Tribunal from Rule 11(3)'s mandatory requirement to reject a claim where the fee is unpaid.

Rule 5 nevertheless provides a route to fairness by permitting an extension of time. The Tribunal must exercise that discretion by weighing all material circumstances, including the balance of prejudice; an adviser’s fault is not determinative. Where a second claim follows a rejected first claim, reasonable practicability requires examination of whether the belief that the first claim remained effective was reasonable.

The claimant brought an unfair-dismissal claim after his solicitors lodged a timeous ET1 and fee-remission application. The remission application was refused. The solicitors attempted to fax an appeal against that refusal by the deadline, but the Tribunal did not receive it and rejected the first claim under Rule 11(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The claimant promptly lodged and paid for a second claim. The Employment Tribunal dismissed both claims for want of jurisdiction. It held that the first claim had been validly rejected, that Rule 6 gave no relief, that an extension under Rule 5 was inappropriate, and that timely presentation of the second claim had been reasonably practicable.

The appeal concerned the nature of the Rule 11 rejection, the availability of Rules 5 and 6, and the correct approach to reasonable practicability under section 111 of the Employment Rights Act 1996.

1. Appeal allowed. The first claim had been properly rejected initially under Rule 11(3), but the Employment Tribunal erred in refusing an extension under Rule 5. The claim was remitted to proceed as an unfair-dismissal claim.

2. Rejection under Rule 11(3) is a judicial act of the Tribunal. Administrative staff may support and communicate that act, but do not exercise an independent delegated power. The Employment Judge therefore erred in describing the function as administrative. The error did not affect the validity of the rejection. The judicial character of the act also answered the Article 6(1) point.

3. Rule 6 cannot be construed to displace Rule 11(3). Rule 11(3) imposes an unavoidable consequence when a fee remains unpaid after a refused remission application: the claim is rejected. Rule 6 relieves parties from consequences of non-compliance; it does not allow the Tribunal to avoid a mandatory obligation imposed on it. Rule 5, rather than Rule 6, is the available judicial route to relief where fairness justifies an extension.

4. In exercising Rule 5, the Tribunal must weigh all material factors under the overriding objective. An omission by advisers may be relevant, but cannot be treated as decisive. The Tribunal made no assessment of the balance of prejudice. That was an error of law. The claimant faced loss of an important claim, while the respondent suffered no material prejudice beyond having to defend it. The balance was all one way, so an extension should be granted.

5. The Tribunal also erred in its reasonable-practicability analysis of the second claim. It conflated the circumstances of the first and second claims. The proper question was whether the advisers’ genuine mistaken belief that the fee-remission appeal had been received, and hence that no second claim was needed, was reasonable in all the circumstances. The second claim was lodged promptly once the rejection was discovered.

6. The first claim was remitted to the Employment Tribunal. The claimant was allowed 28 days to resolve payment of the fee or fee-remission position, after which the claim was to continue.

• Employment Appeal Tribunal: Allowed the appeal and remitted the original claim to proceed: [2016] UKEAT 0002_16_1207.
• Employment Tribunal: By a judgment dated 29 October 2015 and sent to the parties on 2 November 2015, dismissed both claims for want of jurisdiction. The Employment Appeal Tribunal upheld the initial Rule 11 rejection but set aside the refusal of Rule 5 relief.