At the outset of a Preliminary Hearing, the ELAAS representative raised concerns as to the Appellant’s litigation capacity. Adjourning the hearing on terms enabling the investigation of that issue, the EAT held that section 30(3) of the Employment Tribunals Act 1996 (‘the ETA’) provides the EAT with the power to regulate its own procedure, subject to the EAT Rules and any Practice Direction. The appointment of a litigation friend for a person who lacks capacity to conduct litigation falls within paragraph 13.1 of the 2018 Practice Direction, whereby, consistent with the overriding objective, the EAT will seek to give directions for case management so that the appeal can be dealt with in the most effective and just way. Furthermore, in accordance with paragraph 1.8 of the Practice Direction, it is appropriate, in such matters, that the EAT be guided by the CPR (in particular, for current purposes, Part 21).
Under section 7(1) of the ETA, the Secretary of State may, by regulations, make such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals. Section 30(1) of the same Act provides that it is for the Lord Chancellor, after consultation with the Lord President of the Court of Session, to make rules with respect to proceedings before the EAT. Over two and a half years after the expressly ‘urgent’ need had been identified, in AM Afghanistan v SoS for the Home Dept (Lord Chancellor intervening) [2018] 4 WLR 78, CA; and in Jhuti v Royal Mail Group Limited [2018] ICR 1077, EAT, it was to be hoped that truly urgent consideration would now be given to the implementation of rules containing clearly defined powers in relation to proceedings involving protected parties (as defined in Part 21 of the CPR), in employment tribunals and in the EAT.
[2020] UKEAT 0263 – 19 – 2002, [2020] ICR 1217
Bailii
England and Wales
Employment, Human Rights
Updated: 12 November 2021; Ref: scu.653266
