New Employment Tribunal forms must be used after 1st October 2005

From 1 October 2005 the Tribunal will not accept claims or defences unless they are on an approved form provided by the Employment Tribunals Service. The forms will now be referred to as a ‘claim’ or ‘defence’ form. The full title of these forms is the Originating Application or ET1 and the Notice of Appearance or ET3. Until now an application or defence could be filed in any way whatsoever as long as it contained the relevant information. This meant, for example, that claims could be brought by letter.

The claim and defence forms are available on-line at the Employment Tribunals’ Website. They can also be obtained in a paper form from Jobcentres, Citizens’ Advice Bureaux and the Employment Tribunal offices or ordered from the DTI by ringing 0870 150 2500.

From 1 October 2005 the new forms will also be available on the above website in a downloadable format so that they can be saved on a user’s computer. We say ‘hurrah’ for this as it is about time.

Steen & Co Employment Solicitors have acted in numerous tribunal claims since the new on-line form was introduced and we have had significant problems with submitting documents online. For example, in at least two cases our details were added to the form but then deleted by the Tribunal system before the form was sent to the other side.

Other recent tribunal news includes the following:

On 10th August 2005 the Employment Appeal Tribunal sitting in Edinburgh handed down its judgement in a case being brought by Miss Amanda Ireland against her ex-employer Agrico UK Ltd. This case has the reference Appeal No. EATS/0024/05 and can be found on the employment appeal tribunal web site. Ms Ireland was aggrieved at her dismissal by reason of redundancy so went to her union who, on her behalf, instructed a firm of solicitors. The solicitor worked out that the last day for submitting the claim form was 13 September 2004 and because he was busy started preparing it about a week before. Having left it until what the court described as the last minute he went on holiday leaving instructions to a secretary to complete and fax the claim form on the 13th September i.e. on the last day of the 3 month period. The secretary was ill on that day, didn’t come to the office, didn’t call and ask someone else to send the form but left it. She returned the next day and sent it off.

Tribunal claims must be brought within the time limit unless it is not reasonably practicable for it to be submitted in time. The initial tribunal decided that it was not reasonably practicable to submit the form in time so allowed Miss Ireland’s claim to proceed. In a sensible but harsh to Miss Ireland, decision, the appeal court rejected this and said that it was practicable for it to have been submitted in time so did not allow her claim to proceed. Miss Ireland presumably has a perfectly valid claim against the solicitor or the union but unfortunately didn’t have her day in court to argue about the dismissal.

Another recent tribunal case

In a fantastically complicated judgement dealing with powers of tribunals to strike out and/or review its own judgments and orders, His Honour Judge Peter Clark scythed through the complications to get the right decision in the end. The facts were fairly straightforward; an ex-employee was ordered by the tribunal to pay a deposit as a condition of continuing with his case. This is an example of the rule that in effect says ‘we think you are going to lose so to bring this home to you, you will have to pay £500 as a condition of continuing’. The ex-employee had put the wrong postcode on the application form so the order to pay £500 was never received. The Tribunal then ordered that the case be struck out because he hadn’t paid. When he pointed out he hadn’t paid because he hadn’t got the order, the tribunal extended the time for payment to allow him to pay it. The employer appealed and Judge Clark went through the whole of the law on reviewing judgments and orders to find that the Tribunal Chairman who decided to allow the employee to continue made the correct decision for the wrong reasons.

In his decision, the judge said that he found the law governing procedure in tribunals to be complicated but took heart in the fact that Tribunal Chairmen had a wide discretion to get things right. This part of the Judge’s speech is reproduced below. The decision serves as a useful reminder of something that Simon Steen, having advocated in hundreds of tribunals since the 1980s, learned many years ago: in Tribunals the law is not as important as the facts; tribunals nearly always make the correct common-sense decisions based on fairness and justice according to the facts.

Judge Clark’s comment on this was as follows:

Whilst it may on close analysis, become tolerably clear to a practitioner in the field of employment law appearing in employment tribunals for 25 years and with a further 10 years experience sitting in this specialist appeal tribunal, what is the difference between a reviewable strikeout judgment and a deposit order which, whilst not reviewable, may be varied through the, now, Rule 10 procedure, the same is not necessarily true of litigants in person or their representatives, legally qualified, or otherwise, or even Chairmen of Employment Tribunals and learned commentators on the subject. I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding object and the increased powers of Employment Tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions. That is the approach which this Chairman took in the present case; whilst her reasoning was, in part, strictly unsustainable, the result was not.