M G Harkins v Marks & Spencer PLC

At a Rule 3(10) hearing, a respondent has no general right to make submissions. The hearing is a short assessment of whether grounds rejected at the sift stage should proceed, not a preliminary rehearsal of the appeal.

Under the Employment Appeal Tribunal Practice Direction, the judge may invite brief respondent submissions on a particular issue where this accords with the overriding objective. Save in exceptional circumstances, a respondent should not seek to make submissions. Any request should be confined to a readily demonstrable knock-out point which establishes that a ground is unarguable without detailed documents or inquiry into the Employment Tribunal proceedings.

The appellant applied under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 after grounds of her appeal had been subject to a sift-stage opinion under Rule 3(7).

The respondent filed a skeleton argument. It identified material from counsel’s note showing that ground 9, which alleged that a factual finding lacked evidential support, was incorrect. The appellant withdrew that ground. The central procedural issue concerned the very limited circumstances in which a respondent may make submissions at a Rule 3(10) hearing.

1. The Rule 3(10) application succeeded in part. Ground 9 was withdrawn. The remaining grounds were permitted to proceed to a full hearing.

2. A Rule 3(10) hearing determines whether grounds rejected at the Rule 3(7) sift should be allowed to proceed. It is designed for a brief assessment after clear and concise submissions from the appellant. It is not a dress rehearsal for the substantive appeal.

3. Section 5.4.2 of the Employment Appeal Tribunal Practice Direction does not confer a respondent’s right to speak. It permits the judge to seek brief assistance on a particular issue where that accords with the overriding objective. A respondent who attends intending to advance detailed merits submissions will generally not be invited to contribute and will ordinarily incur unnecessary time and cost.

4. Only in very limited circumstances may a respondent properly ask to be heard. The request must be carefully confined to a knock-out point demonstrating that a ground is unarguable, such as a fundamental and readily demonstrable error in the ground. The point must not require detailed documentation or clarification from the Employment Tribunal.

5. A respondent’s skeleton argument will very rarely be appropriate. In this exceptional instance, advance notice of the evidential point concerning ground 9 assisted both the appellant and the EAT. Once that ground was withdrawn, there was no need to hear the respondent. Save in exceptional circumstances, respondents should not seek to make submissions on a Rule 3(10) application.

• Employment Appeal Tribunal: On a Rule 3(10) application following a Rule 3(7) sift under the Employment Appeal Tribunal Rules 1993, ground 9 was withdrawn and the other grounds were allowed to proceed to a full hearing.