Practice and Procedure – JURISDICTIONAL POINTS Claim in time ; extension of time : reasonable practicability
The claimant’s solicitors lodged a first claim timeously but their accompanying fee remission application was rejected and a notice sent requiring payment or an appeal against the rejection by a certain date. An attempt to send, by facsimile transmission, an appeal form against refusal of remission was, unknown to the agents, never received by the Tribunal. The claim was rejected in terms of Rule 11(3) of the 2013 Rules. In receiving intimation of that the agents promptly lodged a second claim.
The Tribunal had decided to dismiss both claims for want of jurisdiction.
On appeal, four matters were argued which were resolved as follows;
1) The Employment Judge had erred in characterising rejection under Rule 11(3) as an administrative function. It was a judicial act carried out with the support of the administration. However, the Tribunal’s conclusion that the first claim had been competently rejected was the correct one, so nothing turned on the error.
2) Following Cranwell v Cullen UKEATPS/0046/14, [2015] UKEAT 0046 – 14 – 2003 it could be regarded as illogical to invoke rule 6 to allow the Tribunal to waive its own mandatory Rule and the Tribunal had not erred in reaching that conclusion.
3) The Tribunal had erred in failing to address the question of the balance of prejudice in deciding not to exercise the discretion available through Rule 5 to allow an extension of time in relation to fee payment. The facts of the case illustrated that the prejudice was all one way.
4) The Tribunal had erred by approaching the circumstances of the first and second claims as one for the purpose of deciding whether it had been reasonably practicable to lodge the second claim timeously. Following Adams v British Telecommunications plc UKEAT/0342/15, [2016] UKEAT 0342 – 15 – 0803 the real issue to be addressed was whether the claimant’s mistaken belief that the appeal against the rejection of fee remission form had been received was reasonable.
Appeal allowed and first claim remitted to the Tribunal to proceed.
Lady Wise
[2016] UKEAT 0002 – 16 – 1207
Bailii
England and Wales
Employment
Updated: 26 January 2022; Ref: scu.571777