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

The Court of Appeal considered (i) whether an ET1 which omitted particulars could nevertheless be in a form which a respondent could sensibly respond to under rule 12(1)(b) of the Employment Tribunals Rules of Procedure 2013 and (ii) whether rule 12(1)(b) was ultra vires the power conferred by section 7 of the Employment Tribunals Act 1996. The court held that, on the facts, the ET1 could sensibly be responded to because the central issue (whether the termination was redundancy or not) was apparent; accordingly the appeals from the employment judges were dismissed. The court further held that a tribunal's rejection under rule 12 is not a "determination of proceedings" for the purposes of section 7(3A)-(3C), and that rule 12(1)(b) was not ultra vires. The court observed, however, that certain related provisions (notably rule 13(4)) raise arguable issues about time-limits which may require attention.

Background and facts. The claimant presented an ET1 one day before the expiry of the unfair dismissal time limit. The ET1 ticked the boxes for unfair dismissal and arrears of pay but omitted the particulars (the box 8.2 entry read "Please see attached"). The actual enclosure sent with the ET1 turned out to be particulars for a different case. The employment tribunal office referred the ET1 to an Employment Judge; Employment Judge Cadney decided not to reject the claim. The respondent school applied to the tribunal staff and then at a preliminary hearing for the claim to be rejected under rule 12 of the 2013 Rules on the ground that the ET1 was in a form which could not sensibly be responded to. Employment Judge Harper held he had no power to reconsider Judge Cadney's decision. The school appealed to the Employment Appeal Tribunal (EAT) where Elisabeth Laing J dismissed the appeal but, in her reasoning, concluded that rule 12(1)(b) was ultra vires section 7 of the Employment Tribunals Act 1996.

Procedure and issues before the Court of Appeal. The Secretary of State was granted permission to appeal to the Court of Appeal against the EAT's reasoning on vires. The Court of Appeal was asked to determine (i) whether the ET1 was in a form which could sensibly be responded to, and (ii) whether rule 12(1)(b) was authorised by section 7 of the 1996 Act.

Issues framed by the court. (i) Factual/legal: could the respondent sensibly plead to the ET1 despite missing particulars? (ii) Constitutional/legal: is rule 12(1)(b) intra vires, given section 7(3A)/(3AA)/(3B) of the Employment Tribunals Act 1996 which constrains rules that authorise determination without hearing or on evidence from only one party?

Court's reasoning and disposition. The Court of Appeal (Bean LJ, Newey LJ and Arden LJ) concluded that the ET1 in the present unfair dismissal case revealed the central issue (the claimant alleged dismissal and re-engagement on less favourable terms; the school contended genuine redundancy), so the respondent could sensibly respond and the decisions of the employment judges and the EAT should be dismissed on that ground. On the vires point Bean LJ held that a rejection under rule 12 is not a "determination of proceedings" but rather a recognition that valid proceedings have not been commenced; therefore the constraints in section 7(3A)-(3C) did not render rule 12(1)(b) ultra vires. Consequently the Court allowed the Secretary of State's appeal against the EAT's implied declaration of invalidity. The court noted, as a subsidiary observation, that rule 13(4) (which deems a claim to be presented on the date a defect is rectified) may raise arguable issues given statutory time limits.

Nature of relief sought: the claimant sought to proceed with claims for unfair dismissal and arrears of pay; the respondents sought rejection of the ET1.

Appeal allowed in part: The Court of Appeal allowed the Secretary of State's appeal on the vires point and held that rule 12(1)(b) of the Employment Tribunals Rules 2013 is not ultra vires; the Court also dismissed the school's appeal on the facts, holding that the ET1 could sensibly be responded to. The reasoning was that a rejection under rule 12 is not a determination of existing proceedings under section 7 of the Employment Tribunals Act 1996 and that, on the facts, the central issue was identifiable so the respondent could sensibly plead.

Employment Tribunal: Employment Judge Cadney decided on 28 January 2016 not to reject the ET1; Employment Judge Harper on 8 March 2016 refused to reconsider that decision. Appeal to the Employment Appeal Tribunal (Elisabeth Laing J, judgment reserved 2 August 2016) dismissed the school's appeal but the EAT judge held (by implication) that rule 12(1)(b) was ultra vires. Secretary of State obtained permission to appeal to the Court of Appeal, which heard the appeal and handed down judgment on 28 March 2018 ([2018] EWCA Civ 672).