The EAT has held in the recent case of Trustees of the William Jones’s School Foundation v Parry that rule 12(1)(b) of the Employment Tribunal Rules might be outside the scope of the primary legislation which made those rules. This is technically known as being “ultra vires”.
The Claimant submitted an ET1 just within the limitation period for unfair dismissal and unlawful deductions from wages. The document submitted by the Claimant’s solicitors with the ET1 (as is now common using the rtf file function when submitting the form online) was the wrong file so unrelated to the Claimant’s claim. The Tribunal considered that this was therefore in a form which could not sensibly be responded to and referred the matter to a Judge. Notwithstanding the error, the Judge accepted the claim. The School appealed pointing out that under Rule 12(2) the judge must reject the claim if it considers it cannot be sensibly responded to.
The EAT said that the Judge had erred when deciding to accept the claim. It held that the only possible conclusion open to the Tribunal was that the claim could not be sensibly responded to given that faced with the ET1 the respondent would have no idea on the basis on which the Claimant was bringing her claims. The EAT raised the issue that rule 12(1)(b) for rejecting claims might be outside the primary legislation as found in s7 of the Employment Tribunals Act 1996. The EAT suggested that the correct procedure in this instance would be that set out in rule 27 of the Employment Tribunal Rules namely that giving the parties the opportunity to make representations and to then have a hearing before a claim can be dismissed.
This is a new issue which has not ben previously raised. Whilst rejections may not be commonplace this suggests that the Tribunal may have trouble doing so without hearing representations and having a hearing first.