1. The main issues are whether EJ1 erred in law in deciding not to reject the claim (or part of it), and, if it arises, whether EJ2 erred in law in refusing to reconsider EJ1's Decision on the grounds that Rule 71 only applies to a Judgment and EJ1's Decision was not "a Judgment" for the purposes of Rules 70 and following. The first issue, logically, is whether the EAT has jurisdiction to entertain the appeals.

Jurisdiction

1. It is clear to me that both appeals raise questions of law "arising from any decision of, or arising in any proceedings before" an ET. "Decision" is not defined in the ETA and I reject the submission, if made, that it must somehow be interpreted consistently with the definition of "Judgment" in the 2013 Rules. It is obvious that a term used in primary legislation cannot be defined by referring to secondary legislation, leaving aside the point that the word which is defined in the 2013 Rules is "Judgment", not "Decision". Be that as it may, the questions of law in this case incontestably arose in proceedings before the ET. The authorities on which Ms Newbegin relied for this part of her argument either ignore the principle about interpretation to which I have just referred, or ignore the second limb of section 21(1). In the best traditions of the Bar, Ms Newbegin also drew my attention to the decision in [HMRC v Paw]() UKEATPA/ 0703/11DA. Those were appeals against Orders of the Registrar; the Appellant appeared in person and it does not seem as though the Respondent was represented. Nonetheless, HHJ McMullen QC reached a similar conclusion to that which I have just expressed.

Did EJ1 err in law in deciding not to reject the claim?

1. The question under Rule 12(1)(b) of the 2013 Rules is whether the EJ was entitled to conclude that the ET1 (p21) was in a form which could sensibly be responded to or was not otherwise an abuse of process. I have already described the ET1 which was presented. As I have said, the "attached" rider which the Claimant's solicitor sent to the ET, but which the ET did not send to the Respondent, related to a different case. Rule 12(1)(b) does not refer to the Respondent's subjective knowledge about the underlying facts. This is sensible, as the EJ to whom a claim form is referred will, obviously, have no means of knowing anything about the claim apart from what he can gather from the ET1. The test in Rule 12(1)(b) is an objective one. It is whether the claim is expressed in such a way as to enable the Respondent sensibly, or reasonably, to respond, or to plead, to it.

1. The necessary inference from EJ1's refusal to reject of the claim is that he considered that the ET1 could "sensibly be responded to". Mr Leach rightly accepts that on an appeal on a point of law, he can only challenge that refusal if it was "perverse" (in the technical sense). I accept Ms Newbegin's submission that an EJ should only reject a claim if he is sure that it cannot be sensibly responded to. If he is in any doubt, he must accept it.

1. An EJ looking at this ET1 could only have concluded that a Respondent faced with this ET1 would have had no idea of the basis on which the Claimant was making either of her claims, and that there was no way in which the Respondent in this case could sensibly respond, other than to say "I deny/accept that the Claimant was unfairly dismissed and is owed arrears of pay". Mr Leach relies on the tentative observations of Slade J in [Fairbank v Care Management Group]() UKEAT/0139/12/JOJ at paragraph 13 as explaining what sort of details should be in an ET1. I accept, as Ms Newbegin submitted, they were made in the different context of a claim alleging discrimination on grounds of race. I reject her submission that that difference of context makes these observations irrelevant. They are of some analogical help. I have no hesitation in holding that no reasonable EJ properly directing himself in law could have concluded that an ET1 in this form could sensibly be responded to.

1. Before I leave this aspect of the argument, I must deal with various submissions made by Ms Newbegin, based on earlier authorities (for example Burns International Security v Butt [1983] IRLR 438), and on earlier iterations of the procedure Rules, about the basic minimum which an ET1 should contain, and the consequences of a failure to comply with any minimum requirements. The extent to which those authorities can help me is much limited by two factors. First, they concern the construction of different words in different procedure Rules. Second, and more importantly, they are based on the misapprehension that a failure to comply with a prescriptive procedure Rule made in delegated legislation cannot take away a right to make a claim which is conferred by primary legislation. At any rate since the EPCA, the primary legislation has provided that claims must be "made", or "instituted" in accordance with procedure regulations. These provisions provide statutory authority for Rules which derogate from the statutory right to bring a claim if that claim is not "made" or "instituted", as the case may be, in accordance with procedure Rules. The cases on which she relied do not refer to section 128 of the EPCA or to section 7(2) of the ETA**, as the case may be. I accept Mr Leach's submission that section 7(2) is highly significant.

1. Ms Newbegin also submitted that section 7(2) is not referred to in the preamble to the 2013 Regulations, and therefore is not one of the provisions which authorises the making of the 2013 Regulations. This submission misses the point. Mr Leach relies on section 7(2) not as authorising the making of the 2013 Regulations, but as showing (broadly) Parliament's intention that regulations might cut down the otherwise unfettered statutory right to make various types of claims, enforcing various rights, to the ET. This is the point which was overlooked in the earlier cases. The making of procedure regulations such as the 2013 Regulations, and their content, are authorised by the other statutory provisions including the other subsections of section 7 which are recited in the preamble to, for example, the 2013 Regulations. What is authorised by section 7(2) is something different: that is, the potential effect of the provisions in procedure regulations on statutory rights to bring various types of claim. The point of Mr Leach's submission is that without section 7(2), the relevant parts of the 2013 Rules might be vulnerable to the general criticism that secondary legislation cannot cut down rights conferred by primary legislation. But section 7(2) authorises such an effect, to the extent, at least, that claim is not "instituted in accordance with" the relevant Rules.

1. There was a dispute about what "instituted" means, however. Ms Newbegin submitted that it means "presented" and that Rule 8 in the 2013 Rules was the only Rule authorised by section 7(2) as derogating from the statutory right to bring a claim. I reject that submission. Rule 12 does two things. First, by implication it imposes requirements about the contents of an ET1 as presented under Rule 8. Second, it provides the procedure by which the ET must deal with ET1s which do not meet those requirements. In my judgment, "instituting" a claim "in accordance with … procedure regulations" means presenting a claim (a) by the process prescribed in procedure regulations, and (b) of a kind which complies with any requirements about the form and contents of the ET1 which are imposed by those regulations. The imposition of those requirements is separately authorised by section 7(3ZA), which also uses the word "instituting".

1. If the only issue on this appeal had been how to apply Rule 12(1)(b) of the 2013 Rules, I would have allowed the first appeal. However, I do not consider that the Rule 12(1)(b) is the end of the inquiry. Before the hearing I raised with counsel the question whether Rule 12(1)(b) is authorised by section 7 of the ETA.

1. Section 7(1) confers a wide power on Secretary of State to make procedure regulations. Section 7(2) requires proceedings before ETs to be instituted in accordance with procedure regulations. I have explained above why I accept the submission that this provision cuts across and restricts the right of access to the ET, conferred by various statutes, to bring proceedings before the ET to vindicate different statutory rights. The institution of such proceedings must conform with the material provisions of the procedure regulations (provided that those provisions are, themselves, authorised by the primary legislation).

1. Section 7(3) authorises certain general types of provision. I do not consider that it is necessarily an exhaustive statement of the regulations which the Secretary of State may make under the wide power conferred by section 7(1). The regulations which the Secretary of State has power to make can authorise him to prescribe requirements in relation to any form "which is used for the purpose of instituting … proceedings in" the ET for any form to be used as a claim form or notice of appearance (section 7(3ZA)). I accept Mr Leach's submission that section 7(3ZA) is authority for the requirements which are imposed by Regulation 12(1).

1. The scheme of section 7 is, however, to confer on the Secretary of State express powers to make procedure regulations which interfere in an unusual way with rights of access to the ET, and, in particular, those which interfere with the right to have a hearing. Thus section 7(3ZB) expressly authorises the Secretary of State to make regulations which limit the number of postponements which a party may have. Section 7(3A) read with section 7(3AA) authorises the Secretary of State to make regulations which provide for the ET to make a determination in proceedings without any hearing (in very limited circumstances only). Similarly, section 7(3B) authorises the Secretary of State to make procedure regulations which enable the ET to determine a claim without hearing from anyone other than the Claimant or his representatives. The relevant circumstance, provided for in section 7(3B)(b), is very narrow; it is where it appears from the application that the Claimant is not seeking any relief which the ET has power to give, or is not entitled to any such relief.

1. I do not consider that the wide power conferred by section 7(1) authorises the Secretary of State to make procedure regulations which provide for a claim to be determined without any hearing in circumstances other than those described in section 7(3AA). The correct approach in my judgment is that that wide power is constrained by section 7(3A) and (3AA). They are an exhaustive statement of the circumstances in which the Secretary of State is authorised to make procedure regulations which make the unusual provision that a claim may be determined without any hearing. Similar reasoning applies, in my judgment, to section 7(3B). It is an exhaustive statement of the circumstances in which the Secretary of State is authorised to make procedure regulations which enable an ET to determine a case having heard only from the Claimant.

1. I have considered what weight I should give to the fact that word "only" is present in subsection (3AA) and absent from subsection (3B). I have decided that this is not significant, for two reasons. First, its presence in subsection (3AA) reflects the legislative history. Subsection (3AA) was inserted later than subsection (3A) in order to cut down the wide power originally conferred by subsection (3A). Second, since subsection (3B) has been expressly inserted to authorise regulations restricting the right to a hearing, I consider that the maxim expressio unius exclusio alterius applies. In other words, the express provision Parliament has made excludes the implication of additional provision of a similar character.

1. Rule 12(1)(b) was in the 2013 Regulations as first promulgated. It restricts access to justice and is an unusual provision in at least three ways. First, it enables a claim to be rejected in limine, without the ET hearing from any party at all. If that stood alone it is doubtful whether it would be authorised by section 7; see section 7(3A) read with section 7(3AA). The ET will only hear from one party, the Claimant, if the Claimant exercises the right, conferred by Rule 13, to ask for the rejection to be reconsidered. So the second unusual feature, which is authorised by section 7, is that a final determination will potentially be made after hearing from only one party. The third is that this Rule restricts access to justice by purporting to authorise the ET to reject a claim if "it cannot sensibly be responded to or is otherwise an abuse of process". The parties agreed that the draftsman has assumed that presenting a claim in such a form is an abuse of process, and that the Rule requires an EJ to reject such a claim and any other claim which is "otherwise an abuse of process".

1. As I have indicated, Rule 12(1) makes requirements about the contents of the ET1. To the extent that it does that, it is authorised by section 7(3ZA). I reject Miss Newbegin's submission that section 7(3ZA) only authorises requirements "relating to the form itself" and does not authorise stipulations about what information should be in, or with, the form. I do not consider that the explanatory note on which she relies supports this submission; it is to a contrary effect.

1. But Rule 12(1)(b) does more than to prescribe requirements. It also prescribes a procedure for enforcing those requirements. That procedure, except and in so far as it coincides with subsection 3(B), is not authorised by the primary legislation. Mr Leach submitted that the procedure was authorised, because a power to make requirements implied a power to provide for sanctions if the requirements are not complied with. He relied on a broad statement in the judgment of Lord Selborne LC in Attorney General v Great Eastern Railway Company LR 7HL 653 that the ultra vires rule is to be applied reasonably. The actual decision in that case was that the impugned transaction was expressly authorised by the legislation. In any event, Rule 27 provides a mechanism for enforcing these requirements. Mr Leach's submission is not an answer to this point. The drafting of section 7 shows in my judgment that Parliament appreciated that provisions curtailing the right to a hearing are unusual and wished to provide specific (but limited) authority for such procedures in the ET.

1. There is an overlap between a claim "which the Tribunal has no jurisdiction to consider" (in Rule 12(1)(a)) and the test in section 7(3B) ("it appears from the application … that the [Claimant] is not seeking any relief which an [ET] has power to give … or that he is not … entitled to it"). The difficulty for the Respondent is that it is clear from the ET1 that the Claimant is seeking relief which the ET has power to give, and there is nothing to indicate that she is not entitled to it. It is also clear that her claims are claims over which the ET has jurisdiction. I bear in mind Ms Newbegin's correct submission that an EJ should not reject a claim unless he is sure that the applicable test is met. I consider that an EJ applying the test which is authorised by statute would have been bound to conclude that the claim should not be rejected.

1. Although I have held that, applying Rule 12(1)(b), the EJ was bound to reject the ET1, for the reasons I have given, I consider that the test in Rule 12(1)(b) is not authorised, in the context of the procedure provided for by Rule 12, by any of the provisions of section 7, or by the general power conferred by section 41(4). Such a drastic interference with the right to bring a claim cannot be characterised as "incidental, supplementary or transitional provision". The application of that test, however, is not problematic in the context of the Rule 27 procedure, and, that, it seems to me, is the correct procedure for enforcing compliance with the requirements imposed by Rule 12.

1. Thus the EJ erred in concluding that the claim could sensibly be responded to. So he erred in applying that test incorrectly to the facts. However, the only provision in Rule 12 which is authorised by section 7 is Rule 12(1)(a). The claims were indisputably claims which the ET had jurisdiction to consider, as they were claims for unfair dismissal and for arrears of pay. So his error is an immaterial error.

1. Ms Newbegin made some submissions about Article 6. Because of the view I have taken on the effect of section 7(3B) I do not need to decide them. I would have been minded to reject them, by analogy with the reasoning in Anderton v Clywd County Council [2002] EWCA Civ 933, [2002] 1 WLR 3174, a case on the relationship between the Civil Procedure Rules** and Article 6, which Mr Leach relied on.

1. It follows that I must dismiss the appeal against the Decision not to reject the claim.

Did EJ2 err in law in refusing to reconsider EJ1's decision not to reject the claim?

1. That conclusion means that the second appeal, against the ET's refusal to reconsider that decision, is academic. Even if the ET erred in refusing to reconsider the decision, if the decision was incontestably correct, it could not be "necessary in the interests of justice" for the ET to reconsider it (see Rule 70).

1. Since I have heard argument on this point, I will express my views on it briefly, for what they are worth. The ET refused to reconsider the decision not to reject the claim on one ground only, which was that the decision was not a "Judgment". I assume that the EJ recognised, correctly, that he had power to reconsider the decision (if it was a Judgment), and that an application had been made, in time, for the decision to be reconsidered. I also consider that the ET was right to conclude, on the true construction of the reconsideration provisions in the Rules as a whole, that the power to reconsider only applies to Judgments and not to case management Orders. It is clear from Rule 1(3) that these are mutually exclusive categories.

1. I reject Ms Newbegin's submission that the existence of Rule 13 prevents a Respondent from applying to reconsider a decision not to reject an ET1. Rule 13 provides a specific procedure for a Claimant to apply for reconsideration of a decision to reject his claim. That procedure has specific consequences. For example, if the ET decides that the defect can be rectified, the claim as rectified is treated as having been presented on the day when it was rectified. The existence of that procedure does not by necessary implication (for that must be the test) prevent a Respondent, once notified of a decision to accept a claim, from applying under Rule 70 for that decision to be reconsidered, provided that that decision is a "Judgment". Specific provision has been made in the 2013 Rules about a Claimant's application for reconsideration of the rejection of a claim in order to ensure, in particular, that if the claim is rectified, the rectification does not relate back to the date when the defective claim was first presented.

1. I also note that there is no specific provision in the 2013 Rules preventing a Respondent from applying for a reconsideration of a decision not to reject an ET1; contrast Rule 34(2) in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004; 2004 SI No 1861, which Mr Leach referred me to. That provision dealt with reviews, the precursor of reconsiderations. These linked factors support my view a Respondent may apply for a reconsideration of a decision not to reject an ET1 under the general reconsideration provisions of the 2013 Rules.

1. So was EJ1's Decision a "Judgment"? I have set out the relevant provisions. The question is whether the decision whether to reject a claim "finally determines any issue which is capable of finally disposing of any claim … even if it does not necessarily do so". Ms Newbegin submitted that EJ1's Decision was not such a decision because it was not capable of "finally disposing of" the claim. The reason for that was that a decision to reject a claim would not prevent the Claimant from presenting a second claim based on the same statutory causes of action. She relied on paragraph 41 of [Software Box Limited v Gannon]() UKEAT/0433/14; [2016] ICR 148.

1. Whether this argument is right depends on the meaning of "claim" in this context, and what is meant by "dispose" (as opposed to "determine"). I accept Mr Leach's submission that if one applies the definition of "claim" in Rule 1(1), it is clear that a decision whether or not to reject the ET1 does finally determine an issue which is capable of finally disposing of the current claim (or "proceedings before the [ET] making a complaint"), even if that disposal does not prevent the making of a second claim. The word "dispose" has been used in careful contradistinction to "determine". The determination of a claim prevents the bringing of a second identical claim. But the disposal of a claim does not necessarily do so: see the Gannon case.

1. If the claim is rejected, that claim is finally disposed of (subject to the right to apply for reconsideration, and to bring a second claim). A decision whether or not to reject a claim does not necessarily dispose of the claim, if the decision is not to reject it. But that does not prevent Rule 1(3)(b)(ii) from applying, as that provision specifically contemplates a decision which does not necessarily finally dispose of the claim.

1. Had it therefore been necessary for me to decide the second appeal, I would have allowed it.

1. The EAT has jurisdiction to entertain these appeals. I dismiss the first appeal. That decision makes a decision on the second appeal academic. There would be no purpose in requiring the ET to reconsider a decision which as incontestably right. I dismiss that appeal also.