Bickley v John Lewis PLC (Practice and Procedure: Rejection of ET1)

Claims brought before the Employment Tribunal are initiated by the submission of a claim form known as an ET1. The procedural rules governing the acceptance and rejection of ET1 claims are contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Schedule 1 of which sets out the Employment Tribunal Rules of Procedure 2013 ("the 2013 Rules"). Rules 10 to 12 govern the initial consideration of incoming claims, providing the legislative basis upon which a tribunal may reject a claim before it proceeds to substantive determination.

Under Rule 10 of the 2013 Rules, a claim must be submitted on the prescribed form and must contain the minimum information specified in Rule 10(1). Where a claim does not use the prescribed form, or does not contain the required minimum information (including the claimant's name, the respondent's name, and an early conciliation number or exemption), the Employment Tribunal staff are required to reject it without referring the matter to an Employment Judge. Rule 12 separately empowers an Employment Judge to reject a claim on judicial grounds, for example where the Tribunal has no jurisdiction to consider it, where the claim is one that cannot be entertained by the Tribunal, or where the manner in which the claim is expressed discloses no reasonable prospect of success. Both administrative and judicial rejection are subject to the reconsideration procedure set out in Rule 13, which permits a claimant to apply for reconsideration of a rejection decision within a prescribed period.

The procedural requirement to complete early conciliation through ACAS before presenting an ET1 is imposed by section 18A of the Employment Tribunals Act 1996, as inserted by the Enterprise and Regulatory Reform Act 2013. Failure to comply with this requirement, or to fall within a recognised exemption, provides a distinct and frequently litigated ground for rejection. The Employment Appeal Tribunal has on numerous occasions considered the proper approach to rejection on early conciliation grounds, examining questions of whether an exemption applies, whether the correct respondent has been named in the early conciliation notification, and whether a defect in the early conciliation process is capable of being waived or cured.

Cases involving large retail employers such as John Lewis PLC frequently engage questions about whether the correct legal entity has been identified as the respondent. John Lewis PLC operates as part of the John Lewis Partnership, a structure which encompasses separate legal entities including Waitrose and other trading divisions. Errors in identifying the correct respondent entity at the ET1 or early conciliation stage have generated litigation about whether such errors justify rejection, or whether they may be treated as irregularities susceptible to correction under Rule 6 of the 2013 Rules, which provides that a failure to comply with a rule does not of itself render the proceedings void, and that a tribunal may take such action as it considers just.

At the Employment Appeal Tribunal level, appeals against rejection decisions are governed by section 21 of the Employment Tribunals Act 1996 and the Employment Appeal Tribunal Rules 1993 (SI 1993/2854, as amended). The EAT exercises a jurisdiction that is limited to questions of law; it does not rehear the facts. Where a rejection decision is challenged, the EAT will consider whether the Employment Judge applied the correct legal test, took into account irrelevant considerations, failed to take into account relevant ones, or reached a conclusion that was not reasonably open to a tribunal properly directing itself. The correctness of the legal interpretation given to Rules 10 to 13 of the 2013 Rules is a pure question of law and is therefore entirely within the EAT's appellate competence.

In a case styled as concerning the rejection of an ET1, the central issues for determination by the EAT would typically include: first, whether the Employment Tribunal applied the correct legal test in determining that the claim fell within one of the mandatory rejection grounds under Rules 10 or 12; secondly, whether a discretion to treat the defect as an irregularity curable under Rule 6 was lawfully exercised or, where applicable, whether the tribunal erred in failing to exercise it; and thirdly, where the rejection engaged early conciliation requirements, whether the correct approach to section 18A compliance and the relevant ACAS early conciliation certificate was adopted.

A further potential issue concerns the time-limit consequences of rejection. Where a claim is rejected and the claimant applies for reconsideration under Rule 13, or subsequently appeals to the EAT, the underlying limitation period for the substantive claim continues to run unless it has already been satisfied. This raises acute questions in cases where, for example, an unfair dismissal claim must ordinarily be presented within three months of the effective date of termination under section 111(2) of the Employment Rights Act 1996. Whether a rejected ET1 "stops the clock" for limitation purposes, and what happens to the limitation position if a rejection is overturned on appeal, are matters of significant practical importance to claimants and have been considered in cases such as Judgment in Hakim v Honeywell Analytics Ltd and the broader line of authority on the effect of non-compliance with early conciliation provisions on time limits.

The leading authority on the approach to early conciliation compliance remains Mist v Derby Community Health Services NHS Trust [2016] ICR 543 (EAT), in which the Employment Appeal Tribunal examined the requirements of section 18A of the Employment Tribunals Act 1996 in detail and held that the obligation to notify ACAS prior to presenting a claim is a condition precedent to the jurisdiction of the Employment Tribunal. The requirement is not merely procedural in the sense of being capable of waiver; it is jurisdictional. This distinction has important consequences because it means that even where no prejudice has been caused to the respondent, the tribunal is not at liberty to overlook non-compliance.

The question of whether the prospective respondent named in the ACAS early conciliation notification must be identical to the respondent named in the ET1 has been addressed in Science Warehouse Ltd v Mills [2016] ICR 423 (EAT). In that case the EAT held that the name given in the early conciliation notification need not be a perfect match to the respondent named in the claim form, provided that the two names refer to the same employer. A degree of latitude is permissible in the application of this principle where there is an obvious or minor discrepancy, but the latitude does not extend to cases where an entirely different legal entity has been notified to ACAS compared to the entity sued in the ET1.

The application of Rule 6 of the 2013 Rules — the general power to treat non-compliance as an irregularity — to the early conciliation jurisdiction point was considered in Drake International Systems Ltd v O'Hare [2017] IRLR 45 (EAT), where the EAT confirmed that Rule 6 cannot be used to cure a jurisdictional defect arising from failure to comply with section 18A of the 1996 Act. Rule 6 is a case management provision concerned with procedural irregularities within the conduct of proceedings; it is not a mechanism by which the Tribunal can confer upon itself a jurisdiction it does not otherwise possess. This principle has been consistently applied in subsequent EAT decisions.

Where rejection is based not on early conciliation but on the judicial grounds specified in Rule 12 — for example, that the claim is one the tribunal has no jurisdiction to consider, or that it discloses no reasonable prospect of success — the applicable standard is analogous to the threshold applied on a strike-out application under Rule 37. The Employment Judge must be satisfied to a high degree that there is no arguable basis for the claim before rejecting it outright. The procedure under Rule 12 is summary in nature and is not the occasion for a detailed examination of disputed facts; its purpose is to filter out claims that are obviously misconceived or that lack any jurisdictional foundation on their face.

On the reconsideration of a rejection under Rule 13, the Employment Judge considers the application on the papers unless a hearing is requested. The claimant must demonstrate either that the basis of rejection was legally incorrect, or that additional information or documentation supplied with the reconsideration application satisfies the deficiency identified in the rejection decision. The reconsideration procedure under Rule 13 has been held to be a distinct and self-contained process; it is not an appeal and the judge conducting the reconsideration is not bound to treat the matter as if it were a fresh decision, but equally is not limited to considering whether the original decision was Wednesbury unreasonable.

Rejection cases at the EAT serve the important function of delineating the boundary between jurisdictional prerequisites and procedural formalities. The 2013 Rules introduced a more structured and, in some respects, stricter regime for the acceptance of claims than had existed under the previous Employment Tribunal Rules of Procedure 2004. The volume of rejection appeals that have reached the EAT since 2014 reflects both the complexity of the early conciliation requirement and the practical difficulties that unrepresented claimants in particular face in navigating the system correctly. Decisions of the EAT in this area therefore have a significance that extends beyond the individual parties, providing guidance to Employment Tribunal judges, ACAS, and claimant advisers about the precise requirements that must be satisfied before a claim can proceed.

Where an EAT decision concerns a major national employer such as John Lewis PLC, the judgment may also clarify the practical requirements applicable to employees of large organisations operating through complex group structures. The question of which entity within a corporate group is the correct respondent, and whether the early conciliation notification has been directed to that entity, is a recurring practical difficulty in cases involving such employers. An authoritative EAT decision on this point would be of significant value to employment law practitioners advising both claimants and corporate respondents.