S Brown v East Hanningfield Pre-School

Under Rule 21 of the Employment Tribunal Rules 2013, an Employment Judge may determine an undefended claim on paper only when satisfied that it can properly be determined on the available material. If material uncertainty remains, the judge should seek further information or list a hearing.

The Tribunal is not generally required to formulate or expand a party’s case. However, where an unrepresented claimant’s ET1 and accompanying material indicate an unclear and potentially wider claim, a final paper judgment without clarification may fall outside the reasonable exercise of discretion.

The claimant presented an ET1 for a small underpayment of wages, a payslip and a P45. The ET1 stated that further claims might be added after advice. An accompanying document referred to disability, bullying, grievances, resignation and complaints to Ofsted.

The respondent’s response was not identified by the Tribunal before it issued a Rule 21 judgment on 28 May 2021 for the wages claim. The claimant had also emailed two days earlier about preparing a witness statement and bundle for the listed hearing. The Employment Judge later corrected the judgment to address the payslip, but declined otherwise to reconsider it.

The claimant appealed. The central issue was whether the Employment Judge could reasonably dispose of the claim on paper without first clarifying its scope and any intended amendment.

1. Appeal allowed. The Rule 21 judgment was made outside the reasonable exercise of the Employment Judge’s discretion and the matter was remitted to the Employment Tribunal for reconsideration under current Rule 22.

2. Rule 21 of the Employment Tribunal Rules 2013 did not permit judgment merely because the claim was undefended. Applying Limoine v Sharma [2020] ICR 389, the judge had first to decide whether the claim could properly be determined on the material available. If uncertainty remained, the judge could request further information; a hearing was required if that process did not resolve it.

3. The material which should have been considered included the ET1, its supplementary document, the ET3, and the claimant’s email. The ET1 expressly foreshadowed a possible amendment and contained facts capable of supporting wider claims, including disability discrimination, constructive dismissal and protected-disclosure claims. The email also indicated that the claimant had prepared material for the hearing.

4. The Tribunal’s role remained arbitral, not inquisitorial. It had no general duty to prompt an expansion of a party’s case. Nevertheless, in the particular circumstances, the documents created sufficient uncertainty that the judge could not reasonably enter a final wages judgment without further enquiry. The appropriate initial step could have been a simple request for the proposed witness statement, bundle and clarification of any amendments; an immediate hearing was not the only possible response.

5. The EAT did not decide whether any amendment would ultimately have succeeded. It held only that the possibility could not reasonably be excluded without clarification. The remittal was to any Employment Judge, who could manage the case as appropriate.

• Employment Appeal Tribunal: allowed the appeal and remitted the case to the Employment Tribunal for reconsideration under current Rule 22.
• Employment Tribunal: issued a Rule 21 judgment on 28 May 2021 for wages. On 20 September 2023 it corrected the judgment to include a payslip declaration but declined otherwise to reconsider it.