William Jones’s School Foundation v Parry (2016)
The established position
Under Rule 12(2) of the Employment Tribunal Rules 2013, an employment judge is to reject a claim or part of a claim that is one which the tribunal has no jurisdiction to consider, is in a form which cannot sensibly be responded to or is an abuse of process, is a claim that does not contain an early conciliation number or confirmation that an EC exemptions applies, or is a claim stating that such an exemptions applies but it does not. This rejection is a paper exercise, done without a hearing, with the claimant’s only recourse being Rule 13’s application for reconsideration. This reconsideration is made on the basis that the decision to reject was wrong or that the defect could be rectified and must be made within 14 days of the date that notice of rejection was sent. This reconsideration can be determined with or without a hearing.
This seems an appropriate, time-efficient system to deal with claims that should not trouble the tribunal. However, in the recent case of The Trustees of the William Jones’s School Foundation v Parry, the EAT has held that rule 12(1)(b) of the Employment Tribunal Rules 2013 is ultra vires- outside the scope of the primary legislation under which those Rules are made.
The claimant (represented by solicitors) had presented her ET1 for claims of unlawful deduction of wages and unfair dismissal the day before the statutory deadline. The solicitors attached the details of claim of another case to the ET1. The tribunal accepted that the claim was in a form which could not be sensibly responded to but still decided to accept the claims. The Respondent appealed, pointing to the obligatory not discretionary nature of Rule 12(2).
In the EAT, Mrs Justice Laing quoted the ETA 1996 section 7(3A) and 7(3AA) that enable regulations to provide that proceedings may be determined without a hearing only when all the parties consent in writing to that, or the respondent has presented no response, or does not contest the case. She considered that the power to make regulations that allow for determination without a hearing is strictly constrained to the circumstances covered by section 7(3AA). Rule 12(1)(b) does not fall within those circumstances and so is ultra vires. Rule 12(1)(a) remains within. It’s unclear if Rule 12(1)(c)-(f) relating to the early conciliation are within the limited conditions of section 7(3AA).
What power should a tribunal look to instead to deal with such a circumstance? To Rule 26-27 and the process of initial consideration. After the respondent has provided a response, the judge can then make a decision that the claim has no reasonable prospect of success and send the appropriate notice to all parties.
How could this effect early conciliation?
This judgment is a little difficult to understand. As outlined above, if a claim is rejected under Rule 12(2), the claimant then has 14 days to apply for reconsideration on the basis that the defect could be rectified. It would have been a straightforward process for the claimant in this case to make such an application and submit the right grounds of claim with her application form. Instead, the original tribunal and now the EAT have placed a question mark over the legality of some key parts of the early conciliation scheme.