Secretary of State for Business, Energy and Industrial Strategy v Parry & Anor

A rejection under rule 12 of the Employment Tribunals Rules of Procedure 2013 is not a determination of proceedings. It recognises that a completed claim form capable of instituting proceedings has not been presented. The restrictions in section 7(3A)–(3C) of the Employment Tribunals Act 1996 therefore do not invalidate the rule.

Rule 12(1)(b) must be applied cautiously. A claim should be rejected only where the employment judge is sure that it cannot sensibly be answered. The inquiry is context-specific. A minimally particularised unfair-dismissal claim may be answerable where the decisive issue is known to both parties, although a wholly unparticularised discrimination claim may not be.

The claimant presented an ET1 shortly before expiry of the limitation period for unfair dismissal. She ticked boxes for unfair dismissal and arrears of pay, but omitted the employment end date and supplied no usable particulars: the document intended to accompany the ET1 related to another case.

An employment judge accepted the claim. The school challenged that decision. The Employment Appeal Tribunal dismissed the school’s appeal, holding that the ET1 could not sensibly be responded to but that rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013 was ultra vires. The Secretary of State appealed the implied declaration of invalidity. The school also appealed the EAT order.

The central issues were whether this ET1 could sensibly be responded to and whether rule 12(1)(b) was authorised by section 7 of the Employment Tribunals Act 1996.

1. The Secretary of State’s appeal was allowed and the school’s appeal was dismissed. The Court upheld the EAT’s formal dismissal of the school’s appeal, but on different grounds. It set aside the EAT’s implied declaration that rule 12(1)(b)–(f) was ultra vires.

2. The ET1 could sensibly be answered. The school knew the claimant’s employment history, the dismissal-and-re-engagement arrangement, and that the dispute concerned whether redundancy justified the dismissal. It could have served a response asserting redundancy and reasonable treatment, followed by directions for further particulars. The fact that an ET1 lacks particulars does not invariably prevent a sensible response. The inquiry is context-specific. A judge should reject only when sure that the form cannot sensibly be answered; that construction protects access to the tribunal and is proportionate under article 6.

3. A rejection under rule 12 is not a determination of proceedings. Read with rule 8, rejection recognises that a completed form capable of instituting proceedings has not been presented. It does not resolve the claim’s substance or give rise to cause-of-action or issue estoppel. Accordingly, section 7(3A)–(3C) of the Employment Tribunals Act 1996 did not invalidate rule 12(1)–(2).

4. Bean LJ added that, if rejection were a determination, section 7(3AA) would in any event permit determination without a hearing before the respondent had presented a response. Rule 12 combined with the claimant’s reconsideration opportunity under rule 13 would not, however, satisfy section 7(3B). The Court did not decide whether rule 13(4), which can deem a rectified claim presented only on the rectification date, is ultra vires.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed and the school’s appeal dismissed. The EAT’s formal order was upheld on different grounds, but its implied declaration that rule 12(1)(b)–(f) was ultra vires was set aside: [2018] EWCA Civ 672.

• Employment Appeal Tribunal: The school’s appeals were dismissed. The EAT held that the ET1 could not sensibly be responded to, but that rule 12(1)(b) was ultra vires: UKEAT/0088/16/JOJ and UKEAT/0089/16/JOJ.

• Employment Tribunal: Employment Judge Cadney declined to reject the ET1. Employment Judge Harper held that the acceptance decision was not a judgment and could not be reconsidered under the relevant rules.