EAT Practice and Procedure: Striking-Out/Dismissal – Bias, misconduct and procedural irregularity
The Claimant, who had a long history of mental illness, issued her claim for unfair constructive dismissal (some six years from the date her employment ended). The grounds of claim were poorly drafted but it was possible to spell out claims of unfair dismissal and for compensation. The ET1 did, however, contain an inadmissible claim for compensation for loss suffered by the Claimant’s mother. The Claimant was sent a letter of rejection of the claim, pursuant to the Employment Tribunal Rule 12 which requires an Employment Judge in appropriate circumstances to reject a claim form if it is one that the Employment Tribunal has no jurisdiction to consider, or is in a form that cannot sensibly be responded to, or is otherwise an abuse of the process. The Employment Judge rejected the claim on the grounds that it was an abuse of process; the reasons given were that the claim was:
(i) brought outside of time limits,
(ii) the remedies sought did not appear to be those the Tribunal can award,
(iii) the Claimant did not appear to be claiming unfair dismissal.
The Employment Appeal Tribunal considered that the Employment Judge was wrong in relation to grounds (ii) and (iii).
Insofar as ground (i) was concerned, an ET1 issued out of time is not necessarily an abuse of process, as the Employment Tribunal has jurisdiction to extend time in cases of unfair dismissal if satisfied it was not reasonably practicable to lodge the claim in time.
There was sufficient material to put the Employment Tribunal on notice that the Claimant, by reason of her mental health, may have been unable to present her claim at an earlier date. Had enquiries been made, the Employment Judge would have learned that a consultant psychiatrist considered that for the last six years the Claimant had not been well enough to pursue a legal case.
A decision under Rule 12 should be reserved for plain and obvious cases and the Employment Judge should also have had regard to the Claimant’s disability. In cases where there may be an element of doubt, the Employment Tribunal should proceed by way of Rule 27 which permits a Claimant to make representation before the claim is dismissed for lack of jurisdiction or because it has no reasonable prospect of success.
Serota QC HHJ
[2015] UKEAT 0296 – 14 – 0605
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546436