Appeal No. UKEATS/0023/09/BI
UKEATS/0024/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 27 October 2009

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

MR. DAVID YOUNG	APPELLANT

HEXION SPECIALITY CHEMICALS UK LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R LAWSON
(Solicitor)
Messrs Allan McDougall & Co. Solicitors
3 Coates Crescent 
Edinburgh 
EH3 7AL	
For the Respondent	Written Submissions	

SUMMARY
ET1, presented on the last day before time bar, stated a claim for unfair dismissal. Date of termination of employment specified but not start date.  Employment Tribunal rejected claim and refused review.  Appeal upheld. Tribunal ought to have accepted the claim; it was not open to it to conclude that it was clear that it did not have power to consider the claim. Also, it could be inferred that claimant’s position was that he had been employed for at least the qualifying period.

THE HONOURABLE LADY SMITH
INTRODUCTION
1.	This is an appeal from the rejection of a claim by an Employment Tribunal at Edinburgh, Employment Judge S Craig, by letter dated 9 March 2009.  The claimant also appeals against the Employment  Judge’s refusal of his application for a review of that decision. The review decision was promulgated on 9 April 2009. 

BACKGROUND 
2.	On 3 March 2009, the claimant presented a claim to the Employment Tribunal office at Edinburgh.  It was presented in a form ET1. The form was completed and presented on his behalf by his solicitor. It specified:
-	that the claimant was an employee of the respondent (3.1)
-	that the claim was not about anything else in addition to dismissal (3.4)
-	that his employment ended on 4 December 2008 (4.1)
- 	that his dismissal was unfair in respect that he was unfairly selected for redundancy (5.1).

3.	The claim form did not specify a start date for the claimant’s employment; the question at 4.1 of the ET1 “When did your employment start?” was left unanswered.   The three month time limit for presenting a claim for unfair dismissal was due to expire at midnight on the day that the claim was presented. 

4.	The Tribunal office wrote to the claimant’s solicitor six days later, by letter dated 9 March 2009 stating:

“I am returning your claim because it raises a matter which an Employment  Tribunal has no power to determine, namely unfair dismissal. You have not given details of your start date of employment so we are unable to establish whether you have the required service to claim unfair dismissal.
Employment Judge S Craig has therefore decided that it cannot be accepted.”

5.	By letter dated 16 March 2009, the claimant’s solicitor sought a review of that decision. His letter explained that he had not had the date of commencement of the claimant’s employment when the claim had been submitted but that that information had now come to hand. He accordingly sought review. The application for review was made under reference to rule 34(3)(a) and (e). The letter expressly stated that review was sought on the interests of justice ground. The start date of the claimant’s employment (a date in 1990) was specified in the letter. The application was refused by letter of 9 April 2008, on the instructions of the Employment Judge.  That letter stated that the application for review was refused because:

“… the rejection of the application was not  the result of administrative error.”

6.	She directed that the claim should be accepted as from the date that the start date of the claimant’s employment was intimated to the Tribunal i.e. 17 March 2009, a date some 2 weeks after the 3 month time bar. 

7.	By letter dated 17 April 2009, the claimant’s solicitor took issue with that rejection pointing out that review had been sought in the “interests of justice” (Rule 34(3)(e)) and he asked that the request for review be properly considered. He set out in some detail, with reference to authority, the claimant’s case as to why the claim should not have been rejected on 3 March and why the decision to do so should have been reviewed in his favour.

8.	By letter dated 20 April 2009, the claimant’s solicitor requested that written reasons be provided for the Tribunal’s decision to reject the claimant’s claim and to refuse the application for review. The Employment Tribunal replied by letter dated 1 May 2009 which was in the following terms:

“I refer to your correspondence dated 17th and 20th April 2009.
Employment Judge (S.Craig) to whom your correspondence was referred, has asked that I write and advise that the reasons for the rejection has (sic) already been intimated in the tribunals correspondence of 09/03/2009.
The reason for the rejection of the review application similarly has already been given. The letter of the 09/04/2008 gives the reasons.”

RELEVANT LAW
9.	Under and in terms of rule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, a claim must be presented in the prescribed form (now known as a form ET1) and must contain certain required information (rule 1(4)).  Rule 1(4)(e) provides that the required information includes:
“ details of the claim”. 
and Rule 3(2)  provides that the Tribunal Secretary shall not accept a claim “if it is clear to him” that the claim (a) does not include all the relevant information or (b) that the tribunal does not have power to consider it. If he decides not to accept it the matter is then referred to an Employment Judge under Rule 3(3) and the Employment Judge is required to decide whether or not the claim can be accepted in accordance with the criteria set out in Rule 3(2). So, in this case, the Employment Judge required to consider whether or not it was “clear” that the ET1 failed to contain all the relevant information or whether it was “clear” that the tribunal did not have power to consider the claim.  Judging by the terms of the letter of 9 March 2009, the Employment Judge would appear to have decided that the claim came within the second category. She did so, however, without explaining why it was “clear” that the tribunal did not have power to consider the claim.

10.	It is also relevant to bear in mind the overriding objective: paragraph 3 of the 2004 Regulations provides that the overriding objective is to deal with cases justly.

11.	There has been some discussion of the appropriateness or otherwise of rejecting claims for technical breaches in the authorities. Of particular note is that in Grimmer v KLM Cityhopper UKEAT/0070 2005 IRLR 596 where Prophet J made certain observations regarding the rules in the 2004 Regulations:
“8. ….The Rules cannot be seen in isolation. The chairman, unlike the secretary whose functions are administrative has, as an independent judicial person, to do more than merely run down a checklist. He or she must have in mind the overall interests of justice. It is a very serious step to deny a claimant or for that matter a respondent the opportunity of having an employment rights issue resolved by an independent judicial body i.e. an employment tribunal ……….

…

13. A vital principle which emerges from a full reading of Mr Justice Neill’s judgment in  Burns  is that the Employment  Appeal Tribunal appear to have accepted the submission of Mr Goudie of counsel on behalf of Mr Butt that the Rules of Procedure cannot cut down on an Employment  Tribunal’s jurisdiction to entertain a complaint which the primary legislation providing an employment right empowers it to  determine. If there is a conflict, the Rules must give way. ”

12.	It is also of note that the EAT, in Grimmer, concluded that the appropriate test for establishing whether the “details of the claim” had been provided was:
whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the employment tribunal.”

13.	In similar vein, in Grant v In 2 Focus Sales Development Services Ltd UKEAT/0310/06 /LA, where a form ET1 had been rejected on the basis that it was too small (having become reduced in size through the faxing process), allowing the appeal, the President, Elias J, said:

“40. The right of an individual to take proceedings in a court should not be restricted or limited save where the claimant falls foul of restrictions which have been clearly and unambiguously spelt out.” 

14.	He also made some observations regarding the duty to explain why a claim is being rejected:
“18. …the duty lay with the secretary  under rule 3(1) to explain why the claim had been rejected. The purpose of that is to enable the parties to provide a proper and acceptable form on resubmission.” 

15.	In short, care must be taken to reject only those claims where it can properly be said that it is clear that an item of required information is missing or it is clear that the tribunal has no power to entertain the stated claim.  Then, bearing in mind the overriding objective, if there is any doubt as to whether or not the rules require the Secretary to reject a claim, the benefit of that doubt should be given to the claimant otherwise the claimant may wrongly be denied access to an Employment Tribunal to seek to vindicate her rights.  

The Appeal 
16.	In a clear and well thought out submission, Mr Lawson referred to the chronology of events set out above, the relevant rules of procedure and to Grimmer, Burns International Security Services (UK) Ltd v Butt [1983] IRLR 438, and Grant. He surmised that the Tribunal had rule 3(2)(b) in mind and submitted that the Tribunal had fallen into error in that it was not entitled to reject a claim under its provisions unless it was clear to the Employment  Judge (who had to have regard to the criteria set out in rule 3(2)) that the tribunal did not have power to consider the claim. That was not a conclusion that was open to it. With the date of commencement of employment being silent, the most that could be said was that it was not clear from the form whether or not the Tribunal had power to consider the claim. 

17.	If, on the other hand, the tribunal had rejected the claimant on the basis that the ET1 failed to provide required information, that was not a conclusion that it was entitled to reach. The rule did not specify the start date of employment as a required piece of information.  In determining whether it was a necessary detail, regard had to be had to the fact that the claimant had clearly stated that he was claiming unfair dismissal. In those circumstances it was to be implied that he was saying that he had been employed for more than a year prior to dismissal.  The principles discussed in the above authorities supported that submission. 

18.	Mr Lawson added that the respondents were clearly able to understand the nature of the case against them contained in the ET1; they responded in an ET3 which included a 10 page paper apart.  An order for additional information could have been made if necessary. 

19.	Mr Lawson submitted that the overriding objective weighed in favour of accepting the claim. It was presented on the last day prior to the time bar, the claimant was not likely to succeed in an argument that it was not reasonably practicable to present it prior thereto as he had had union representation through the redundancy proceedings and it could not be assumed that his solicitors would be found to have been negligent.  He sought to refute the respondents’ case that they would be prejudiced. 

20.	Separately, if the main appeal was not successful, Mr Lawson submitted that the appeal against the review decision should be upheld;  the tribunal had failed to consider part of the application namely that which was on the basis of the “interest of justice” ground.

21.	Although the respondents were not represented at the appeal hearing, a written submission was lodged on their behalf.  It had been intimated to the claimant’s solicitors in advance. In summary, they rely on the 3 month time limit for presentation of claims for unfair dismissal (section 111(2) Employment Rights Act 1996), submit that there is no good reason provided as to why the ET1 was not completed in full, no reason why the claimant could not lodge his claim within the time limit and that if the failure to insert the start date for the claimant’s employment was the fault of the claimant’s solicitor then he had a claim against them in negligence. They submit that they would suffer considerable prejudice if the decision of the employment tribunal were to be overturned.  They rely on the fact that another employee had a similar claim and had the claimant’s claim been presented earlier, the two claims could have been conjoined.  No other prejudice is pointed to.  In particular they do not suggest that the failure to specify the date of commencement of his employment in the ET1 caused them any difficulty; it would be hard for them to do so since they provide the date in their form ET3.  It would appear that, in reality, the considerable prejudice that the respondents would suffer would be the loss of the windfall benefit to them of the expiry of the 3 month time limit without the claimant’s claim having been accepted by the tribunal in circumstances where, as they highlight, he would be in great difficulty in persuading the tribunal that it was not reasonably practicable for him to have presented a fully completed ET1 timeously.  That reality is not articulated in the respondents’ written submission but its presence is as obvious as the ubiquitous elephant in the room.

Discussion and Decision 
22.	I am readily persuaded that the tribunal erred in refusing to accept the claimant’s ET1 when it was presented on 3 March 2009.  Its power and obligation to do so is prescribed and restricted by rule 3(2) and (3) of the 2004 Regulations. Specification of the date of commencement of a claimant’s employment is not an item of required information under rule 1(4).  It is not a detail of a claim.  In any event, it could be inferred from the fact that the claimant was claiming unfair dismissal that he was offering to prove that he had completed the qualifying period of employment provided for in section 111(2) of the Employment Rights Act 1996.  He did not actually need to specify the precise start date to do that; he only needed to show that he had been employed by the respondents for more than a year. 

23.	More importantly though, I am satisfied that the Tribunal asked itself the wrong question. It is evident from the letter of 9 March 2009 that it asked whether it could be sure that it had jurisdiction to consider the claim whereas it should have asked itself whether it was clear that it did not have jurisdiction to do so.  If it had asked itself the right question, the answer could only have been in the negative.  It would, I accept, also have been able, quite properly, to observe that it might not have jurisdiction but that would have been a different matter and not an observation which, in terms of the rules, would have required it to reject the claim.   

24.	Echoing the words of the President in Grant, I would add that it is the duty of the Employment Judge to give reasons to the Secretary for onward transmission to a claimant to explain why his claim is being rejected, under rule 3(5).  Those reasons should explain why it is that the conclusion has been reached either that it is clear that the claim does not contain all the required information or that it is clear that the tribunal does not have power to consider the claim.  The letter of 9 March 2009 is confusing and was bound to leave the claimant in some doubt as to the tribunal’s reasoning. Firstly, it states that the claim is being returned because “it raises a matter which an Employment Tribunal has no power to determine, namely unfair dismissal”, which is plainly wrong: Employment Tribunals do have power to determine claims for unfair dismissal. The next sentence refers to the failure to provide a particular “detail” namely the start date of employment. Mr Lawson was not sure, on that basis, which part of rule 3(2) the tribunal had in mind and that is not surprising. Further, though, the tribunal fails to explain how and why, under rule 3(2), it concludes that it is clear that it does not have power to consider the claim. Had proper regard been had to the need to provide clear and adequate reasons, the result could only have been that the letter would not have been sent; it would have been apparent that the tribunal could not conclude that it did not have power to consider the claim.

25.	Separately, I accept Mr Lawson’s submissions regarding the overriding objective. A tribunal in a situation such as in this case, namely where it is obvious that rejection of a claim will mean that it is,  prima facie, time barred, needs to take particular care to check that rule 3(2) does require it to do so. No assumptions can be made as to alternative remedies or the ability of the claimant to demonstrate that it was not reasonably practicable to present the claim at an earlier stage. 

26.	As to the respondents’ submissions, I reject them. It is not relevant to consider whether or not the claim could have been presented earlier. Nor do questions of whether or not they will suffer prejudice arise.  This was not a matter of the exercise of a discretion. Either rule 3(2) directed the tribunal to reject the claim or it did not. It did not require, before determining the matter, to consider whether or not the respondents would be prejudiced.  In any event, I do not accept that the respondents would be prejudiced beyond the windfall benefit to which I have referred.

27.	I do not, in the event, require to consider the appeal against the review decision but I would have had no difficulty in upholding it. For reasons that are not apparent, the tribunal seems to have  failed to notice that review was being sought on the “interests of justice” ground and, further, failed to address it even when it was spelt out in no uncertain terms in the claimant’s solicitor’s cogently argued letter of 17 April 2009. That letter called for more by way of explanation than was contained in the terse response of 1 May 2009 and the claimant was entitled to continue to feel that his application for review had not been fully or properly considered. 

Disposal 
28.	In these circumstances I will pronounce an order upholding the appeal and directing the Employment Tribunal accept the claimant’s claim.