Mark Shulman, Consultant Solicitor at Keystone Law

PRACTICE AND PROCEDURE
There are provisions in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 ("the Rules") which require an automatic rejection of claims in certain circumstances. The recent cases below considered these Rules and help to explain what practitioners need to do to get ET1 forms right and how to try to salvage the situation if they are rejected.

Rule 12
Under Rule 12, the claim (or part of it) has to be rejected if the ET considers that it is of a specific kind described in various sub-paragraphs of the Rule (essentially where it is one which the ET has no jurisdiction to consider, is in a form which cannot sensibly be responded to, is otherwise "an abuse of the process" or (following more recent amendment of the Rules) does not comply with various ACAS Early Conciliation ("EC") requirements).

Rule 13 entitles a Claimant to seek reconsideration of the rejection of the claim and the Claimant can request a hearing accordingly.

The rejection of claims under Rule 12 differs from striking out (under Rule 37) in that it is done before the claim is accepted.

Abuse of process
In what was apparently the first appeal to the EAT in which Rule 12 of the Rules has been considered, the question arose as to whether it was right under the Rule to reject a claim for unfair dismissal made 6 years out of time. In [Higgins v Home Office & Anor ]()UKEAT/0296/14/LA the EAT thought not, because arguably it was not necessarily an abuse of process to present a claim out of time.

In this case the EJ rejected the claim on the grounds that it was an abuse of the ET's process. There was an application for reconsideration of that rejection which included a psychiatrist's letter explaining why the claim was out of time, but the application for reconsideration was refused, even though the psychiatrist's letter had stated that "…during the past six years you have not been well enough to pursue a legal case and therefore this needs to be taken into account when the "time bar" is considered".

The Claimant was a litigant in person who had a long history of mental illness. The three-month time limit for the commencement of proceedings for unfair dismissal expired in February 2008. Her ET1 was lodged in January 2014, almost six years out of time. She had ticked the box claiming unfair dismissal and within the "somewhat muddled" ET1 form had indicated the compensation that she sought. The claim was rejected by the EJ as an abuse of process because (amongst other reasons) it was brought outside of the applicable time limit.

The Claimant appealed arguing that the EJ was wrong to reject the ET1 and say that the claim was an abuse of process because it was so long out of time. This was because there is jurisdiction to extend the time for presenting proceedings if it is not reasonably practicable to bring the claim within the appropriate three-month period (see section 111(2)(b) of the Employment Rights Act 1996). The Claimant's argument was that the issue of reasonable practicability could not be something that could be determined at the Rule 12 stage because it was essentially a question of fact.

The EAT pointed out that whilst the effect of a direction under Rule 12 was equivalent to that of striking out, the Rule 12 procedure is undertaken without there being a hearing and without receipt of any representations from the Claimant. However, it did not follow that in all cases of abuse of process, the correct response is to strike out the claim. The striking out of a valid claim should be the last option (see Laddie J at paragraph 29 in Reckitt Bensicker v Home Pairfum Ltd [2004] FSR 774).

The overriding objective requires ETs to have regard to any disability which it knows about in relation to a party (U v Butler and Wilson . Further, the overriding objective requires that in relation to litigants in person, ETs should provide such assistance "as may be appropriate" in the formulation and presentation of their case (see Barling J in Drysdale v Department of Transport (Maritime and Coastguard Agency). The determination of the appropriate level of assistance or intervention is a matter for the judgment of the ET hearing the case and therefore it has a wide margin of appreciation in assessing such matters.

Drastic order
The EAT concluded that the EJ's order "…was a drastic order, having been made without a hearing and submissions".  Such orders under Rule 12 should only be made in "the most plain and obvious cases". Any borderline case, or cases lacking clarity, or where there is a muddle involving a litigant in person, should be disposed of under Rule 27 (which deals with dismissal of claims and includes a procedure which allows written representations to the ET explaining why the claim should not be dismissed). Further, the EJ's reasons given were inadequate as they did not explain why the ET1 was an abuse of process. If a claim is impossible to respond to or does not disclose a cause of action, it might, in appropriate circumstances, be regarded as an abuse of process. But there was a mechanism under the Rules to strike out claims that do not appear to have a reasonable prospect of success.

There was sufficient material to show that the EJ should have appreciated that the Claimant may have had significant mental health issues; this is the reason why she should have considered proceeding under Rule 27. The mere fact that an ET1 was presented out of time did not mean that it was necessarily an abuse of process because of the power of the ET to extend time. The evidence that became available on the reconsideration application suggested that for six years the Claimant was regarded by a consultant psychiatrist as unable to conduct proceedings.

Therefore the appeal against rejection of the ET1 was allowed and the EAT set aside the original order. The EAT stated that when the EJ reconsiders the  case, he or she may wish to consider whether it might be more appropriate to deal with the matter under Rule 27. If on the other hand, it is decided that the ET1 should be rejected under Rule 12, the Claimant would be able to seek reconsideration (and a hearing) under Rule 13 and she could deploy her medical evidence as to her ability to conduct proceedings and as to the reasonable practicability of presenting the claim within the three-month time limit or thereafter. The EJ should also consider whether the Claimant has mental capacity to conduct proceedings.

ACAS EC CERTIFICATES
Two recent cases highlight the consequences of the Rules in the context of non-compliance with Claim Form requirements concerning ACAS Early Conciliation ("EC"), despite sympathy for the Claimant in each case.

**Problematic EC
*In [Cranwell v Cullen* ]()UKEATPAS/0046/14/SM the EAT considered whether the requirement to state an EC number on the ET1 is mandatory, or whether ET's have some measure of discretion to accept a claim if that requirement is not met.

The Claimant lodged her claim form and ticked the box indicating that she was exempt from ACAS Early Conciliation ("EC"). However, none of the exemptions applied to her and the EJ rejected her claim on this basis. The Claimant appealed.

The EAT started by referring to the allegations in her claim and indicated that if the evidence supported it, then the Claimant had been "most appallingly badly treated" by her former employer (subjected to sexual harassment and treated in a way described as "demeaning, derogatory and discriminatory, culminating in a physical assault").

The EAT accepted that the very thought of conciliation for someone with her particular claim would be problematic and her former employer had apparently been prohibited from contacting the Claimant, so she simply could not conciliate with him. It seemed that the Claimant may not have appreciated that, under the EC scheme if she had put forward those points to an ACAS EC Officer, it was highly likely that he or she would agree there was no point in further conciliation. The Claimant would then have got her EC Certificate without needing to come into contact with a man with whom she had so badly fallen out. It was therefore impossible not to have sympathy with her position.

However, section 18A of the Employment Tribunals Act 1996 provided that before a person could present an application to institute relevant proceedings to the ET, the prospective Claimant must provide the prescribed information to ACAS (subject to specified exceptions, none of which was material to the present case). Under Rule 12(2) of the Rules, an ET must reject any claim that does not (as in the present case) include details of the requisite EC number.

Discretion to waive ET1 requirements?
The Claimant argued on appeal that the Rule as drafted is a strict one. On the face of it, it permitted no exceptions and obliged the EJ to take a certain course. So, where there had been no EC, the EJ had no choice but to say that the claim could not be heard. The Claimant contended that was taking a very strict approach to what were essentially procedural requirements and therefore the EJ should have some discretion. Whilst the purpose of those requirements was to encourage EC, there may be situations (such as in the present case) which, although few and far between, may be real and genuine exceptions to the general run of cases. This approach was argued to be contrary to the overriding objective.

It was contended that Rule 6 (Irregularities and non-compliance) might allow a get-out to the otherwise mandatory requirements. The Rule states that "A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal … does not of itself render void proceedings or any step taken in the proceedings." Further, that Rule allowed the ET in the case of such non-compliance to "take such action as it considers just, which may include…waiving or varying the requirement."

Whilst the EAT President described the Claimant's counsel as advancing "one of the best arguments that I have heard sitting in this capacity in the Employment Appeal Tribunal", the arguments were not ultimately accepted. That was because:-

* Rule 6 would have to be read as modifying the requirements which were otherwise laid down in statute in the Employment Tribunals Act 1996 ("ETA") and in respect of which the word "prescribed" appears. If there was to be an exemption from the regime set out in the Act, then it had to be prescribed under the ETA; * whilst Rule 6 allowed ET's to relieve litigants of the consequences of a failure to comply with the Rules, it made little sense to construe the ET Rules as entitling the ET to avoid the obligation to reject a claim for want of an EC number, which obligation was in absolute and strict terms. The Rules would make little sense if they were to be construed as meaning "The Tribunal has no option but to do X" and then to read is as subject to the proviso "except where it does not want to"; and a failure to comply under Rule 6 envisaged that there was "non-compliance" under the Rules in the first place. There was no non-compliance here because the ET did* comply with its obligation (to reject the claim) and therefore Rule 6 did not come into play.

For these three reasons, tempting though it was for the EAT in the particular circumstances of the case, it was not able to construe Rule 6 as providing the necessary discretion to avoid the consequences of Rule 12. It followed that the Claimant's claim was rightly rejected.

Practical solution
The EAT went on to say that a practical answer would have been for the Claimant to have explained to the ACAS officer that conciliation was pointless in the circumstances of the case. It would be anticipated that the officer would agree with that and therefore would then provide the requisite certificate which would entitle the Claimant to proceed with her claim. She could still do so and then seek to satisfy the ET that her claims should not be struck out by a stringent application of the time limit. An ET may well look on that application with considerable sympathy.

Meanwhile, on the correct construction of the Rules, the appeal had to be dismissed.

Rule 10
Rule 10(1)(c)(i) of the Rules provides that an ET is obliged to reject an ET1 if it does not contain an EC number. Rules 10(2) requires that where this applies, the ET1 form must be returned to the Claimant with a notice of rejection explaining why it has been rejected. The notice must also contain information about how to apply for a reconsideration of the rejection.

In the recent second case on claim forms and EC Certificates (also before the EAT President), a Claimant was unable to proceed where her ET1 was re-lodged very shortly after the time limit expired, having previously been lodged in time but rejected because of an incorrect ACAS certification number.

In [Sterling v United Learning Trust ]()UKEAT/0439/14/DM, the Claimant sent her ET1 form, together with the ET fee and an application for remission, 4 days before the deadline. Although she had correctly been through the ACAS procedures, the ET1 claim form as originally submitted did not contain a valid ACAS early conciliation number. The form was therefore rejected and sent back to her, but was sent by the ET to the wrong address. She therefore only received the rejection after the deadline for the ET1 had passed.

She immediately lodged the form again at the ET in person, having corrected the ACAS certification number. At a hearing to decide whether there was jurisdiction to hear the claims, the EJ inferred from the evidence and the material before him that the Claimant had not properly entered the ACAS conciliation number she had been given and therefore the ET was obliged by Rule 10(1)(c)(i) of the Rules to reject it (because the ET1 did not contain an EC number). The ET concluded that the claims were presented two days out of time and although "One must have sympathy with the Claimant's apparently inadvertent error when she initially sought to present the claim…[but] it was reasonably practicable for the Claimant to have presented her claim form in time, and…she failed to do so". The Claimant did not apply for a reconsideration of that rejection (under Rule 10(2)), but appealed against the EJ's decision on the basis that:-

(i) the ET was not entitled to infer that the claim form did not contain the correct information in respect of the ACAS certificate number. She took it back to the Tribunal and pointed that out and that seemed to have been accepted by the Tribunal Service in due course; and

(ii) the ET had erred in concluding that it was reasonably practicable for the Claimant to have re-presented her claim by the deadline. If the rejection form had been correctly addressed, it would have arrived in time and she would have been able to resubmit the form that day; she acted without any delay having received the form over the weekend.

On the first ground of appeal, there was no direct evidence in documentary form as to the error. The ET did not see both the first claim form submitted and the second one, so as to be able to compare them. However, it heard the oral evidence from the Claimant. Although she was saying that she had had to add two digits to paperwork to correct the EC number, she could not honestly recall which particular document that was (i.e., whether the claim form or the application for remission of fees or both). It concluded that the document must have been the claim form, because it was that document which had been returned. Whilst the EAT had considerable sympathy, it concluded that the ET was entitled to reach that view.

Once it was accepted that the ET was entitled to think that the form did have digits missing from the EC number, the question was whether the ET was then obliged to reject the form. Rule 10 required an EC number to be set out and it was implicit that that number was accurate. The ET had found it was not. Once that appeared to be the case, the ET was obliged to reject the form.

As to the second ground of appeal, the difficulty was the lack of argument before the ET to the effect that it had not been reasonably practicable for the Claimant to present her claim earlier than she did. That point had been conceded on the Claimant's behalf. It was not therefore open to the Claimant to complain about the rejection of an argument which had been given away on her behalf by her representative. Where such an argument on reasonable practicability was not pursued before the ET, a judge was entitled to conclude that she has failed to discharge the burden of proof.

But in fact such an argument that it was not reasonably practicable would actually have been quite difficult because the Claimant had in fact submitted a form in time (but with misplaced or misrecorded numbers on it). The ET had decided that this was not a case in which there had been no fault by the Claimant. The fault might not have been great, but it was her responsibility to make sure that the right conciliation number was used and the ET concluded that the correct EC number had not been used.

Therefore, since the EJ was entitled to come to the conclusion he did, the appeal had to be rejected.

Comment
The EAT commented about the draconian effect of the Claimant's error, namely the unintentional failure to record a number correctly. It may well be that the answer, where there was a simple error of this sort, is an application for reconsideration (under Rule 10(2).

There was also comment that it may have been open to argument that Rule 6 (which permits an ET to excuse irregularities and non-compliance) might have had some applicability, but as that too was not argued before the EJ, he could not be blamed for failing to consider it.

However, we now know from the Cranwell case above that such an argument would not succeed under Rule 12, so it is difficult to see how it could succeed in relation to Rule 10 either.

Therefore, as these cases show, the devil is in the detail and ET1 claim forms must include all prescribed information correctly or risk being rejected.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.