Trustees of the William Jones’s Schools Foundation v Parry

The Employment Appeal Tribunal has jurisdiction to hear an appeal on any question of law arising from an Employment Tribunal decision or proceedings, whether or not the decision is a judgment under the procedural rules.

Primary legislation authorised requirements about the form and contents of an ET1, including requirements enforced through the rejection procedure. It did not authorise Rule 12(1)(b) to determine a claim without a hearing on the ground that it could not sensibly be responded to or was otherwise an abuse of process. That test could instead be applied through the Rule 27 procedure. The statutory test required the claim not to be rejected where the claimant sought relief within the Tribunal’s jurisdiction and there was nothing to show that she was not entitled to it.

The respondent appealed from two Employment Tribunal decisions concerning an ET1 claiming unfair dismissal and arrears of wages. Employment Judge Cadney decided not to reject the claim under Rule 12, although the form contained almost no particulars and an attached rider related to another case. Employment Judge Harper later refused to reconsider that decision, holding that it was not a judgment for the purposes of the reconsideration rules.

The appeals raised the scope of the rejection power, the interaction between the procedural rules and the Employment Tribunals Act 1996, the EAT’s appellate jurisdiction, and whether a respondent could seek reconsideration of a decision not to reject a claim.

1. Jurisdiction. The EAT had jurisdiction under section 21(1) of the Employment Tribunals Act 1996. The word “decision” in the primary legislation could not be confined by the procedural definition of “judgment”.
2. Rejection. Rule 12(1)(b) stated an objective test: whether the claim was expressed so that the respondent could sensibly or reasonably respond to it. An Employment Judge should reject only when sure that the claim could not sensibly be answered; doubt required acceptance. On the Rule 12(1)(b) test, this ET1 was so deficient that refusal to reject it would have been perverse.
3. Statutory authority. Section 7(2) of the Employment Tribunals Act 1996 authorised procedural requirements capable of restricting access to the Tribunal where a claim was not instituted in accordance with the regulations. “Instituting” a claim included presenting it through the prescribed process and complying with requirements concerning its form and contents. Section 7(3ZA) authorised the requirements about the ET1’s contents.
4. Rule 12(1)(b), however, also prescribed an enforcement procedure which could determine a claim without hearing from any party, subject only to the claimant’s reconsideration right. The express provisions in sections 7(3A), 7(3AA) and 7(3B) exhaustively identified the circumstances in which regulations could authorise determination without a hearing, or after hearing only the claimant. Rule 12(1)(b) was therefore unauthorised in that procedural context. The authorised statutory test required no rejection here: the claims sought relief within the ET’s jurisdiction and nothing indicated that the claimant was not entitled to it. The first appeal was dismissed.
5. Reconsideration. The second appeal was academic because the first decision was correct and reconsideration could not be necessary in the interests of justice. Had it arisen, it would have been allowed. A respondent could apply under Rules 70–72 to reconsider a decision not to reject an ET1 if that decision was a judgment. A decision whether to reject a claim finally determined an issue capable of finally disposing of the current proceedings, even though a second claim could later be brought. The first decision was therefore a judgment under Rule 1(3)(b)(ii).

• Employment Tribunal: Employment Judge Cadney decided on 28 January 2016 not to reject the claim. Employment Judge Harper later refused reconsideration and issued written reasons on 21 March 2016.
• Employment Appeal Tribunal: The EAT dismissed both appeals. The first appeal failed because the decision not to reject was correct under the statutory test, although the Rule 12(1)(b) reasoning was legally erroneous. The second appeal was academic, but the EAT stated that it would have allowed it because the first decision was a judgment capable of reconsideration.