Court of Appeal holds that Employment Tribunals Rules of Procedure 2013, r 12(1)(b) is not ultra vires


Re: Secretary of State for Business, Energy and Industrial Strategy v Parry & Ors [2018] EWCA Civ 672

In this case, the Court of Appeal overturned the EAT’s finding that rule 12(1)(b) of the ET Rules was ultra vires.

The respondent, Ms Parry presented a claim form to an employment tribunal on 25 Jan 2016 against the respondent school claiming unfair dismissal and arrears of wages. She attached Particulars of Claim relating to an entirely different case. The ET decided to accept the claim, notwithstanding the terms of r 12(1)(b) of the ET Rules, which require the ET to reject a claim if it cannot sensibly be responded to. The EAT held that the claim could not sensibly be responded to but that r 12(1)(b) read with r 12(2) was ultra vires because it provided for a determination of proceedings without a hearing.

The Secretary of State for Business, Energy and Industrial Strategy lodged a notice seeking permission to appeal the EAT’s implicit declaration that r 12(1)(b) was ultra vires. Permission was granted on 31 Jul 2017. It was argued that the EAT had erred in treating a ‘rejection’ of a claim pursuant to r 12(1)(b) as a ‘determination of proceedings’ to which s 7(3AA) and/or s 7(3B) of the Employment Tribunals Act 1996 apply. Any restrictions set out in s 7 on the power to make provision for such determinations did not apply to a ‘rejection’, which was qualitatively a different sort of judicial act.

Bean LJ giving the leading judgment allowed the Secretary of State’s appeal on the basis that there was nothing in Employment Tribunals Act 1996, s 7 that rendered any of r 12(1)-(2) ultra vires. However, he disagreed with the EAT’s finding that the claim could not sensibly be responded to. R 12(1)(b) should be given a strict interpretation and, on the facts of this case, a respondent could be expected to know enough from the content of the claim form itself to be able to respond. Accordingly, overall, the appeal was dismissed.

Mathew Purchase was involved in this case.