Discretion on the Sift

decisionWhen a claimant lodges an employment tribunal claim the case does not always get so far as the Respondent even needing to decide whether they contest the case and need to submit an ET3 (the document setting out a Respondent’s Grounds of Resistance). Sometimes an employment judge reviews the case at the outset and determines the case should not proceed (called ‘the sift’) and strikes out the claim.

Three appeal cases on this practice have been issued in the last two weeks and they offer a timely reminder to take care when lodging tribunal claims.

Cranwell v Cullen is a case in which the Appeal judge evidently had a great deal of sympathy for the claimant. In order to submit an employment tribunal claim it is a mandatory requirement (with very few exceptions) that a claimant must go through ACAS’ Early Conciliation process. This is evidenced by a EC certificate issued by ACAS, the number of which must be added in a claim.

The claimant alleged that the Respondent has subjected the claimant to sexual harassment and it is clear the issues between the two parties were extremely serious since the Respondent was prohibited from contacting the claimant. Understandably, given the gravity the claimant did not consider early conciliation would resolve the issue but evidently was not aware that while conciliation was not mandatory, approaching ACAS and explaining the position was.

In the event the claimant lodged an ET claim but did not approach ACAS before doing so. Despite the very serious complaint of sexual harassment against the Respondent the claim was struck out as no EC certificate had been issued which is a mandatory requirement. This was done without any hearing of the claimant’s explanation why the requirement had not been followed. At the appeal the EAT confirmed that in the application of this Rule an ET judge has no discretion even if, as in this case, a strict application of the law amounts to the denial of justice to an unrepresented claimant. Reading the law at issue it is difficult to conclude that this decision is correct insofar as the interpretation of the Rules goes but it is also difficult to avoid the conclusion that it is the absolute bar on discretion – even if that is just judicial discretion to further extend time limits to allow a claimant to follow the EC process – is an impediment to access to justice. The one sop is the judge’s indication that were the claimant to resubmit, having gone through the appropriate process, then even if out of time which seems to be almost certainly the case, the claimant may have good grounds to argue the case should nevertheless proceed to hearing but even hear there is no certainty.

Sterling v United Learning Trust covers similar terrain to Cranwell in that it also concerns the ACAS EC process as a necessary prerequisite to submitting a tribunal claim. Although the circumstances are less severe the circumstances are equally concerning. Here it appears the EC process had been followed by the claimant. The claimant submitted a claim, with an EC certificate, four days before the time limit expired but the EC number had a mistake on it. The Tribunal returned the form to the claimant to correct the error but addressed the envelope to the wrong address.  The claimant made the claim, with the correct information, as soon as she was able to but by that time the claim was out of time. As a result the claimant’s claims of unfair dismissal was struck out. Again, an analysis of the initial tribunal decision by the EAT did not find the decisions to be unlawful despite the errors of the tribunal itself (worryingly, this seems not to be a isolated incident where the tribunal’s address errors affects a claimant’s ability to have their claim heard – see Carroll v The Mayor’s Office for Policing and Crime).

Unlike the previous two cases Higgins v Home Office does not concern ACAS EC (but again (!) suggests that Tribunal staff made errors in addressing correspondence – see para 11). The claimant resigned her employment in 2007 and evidently had significant health concerns. Six years later the claimant in what was a very muddled ET1 (she was not represented) claimed she had been constructively dismissed, she submitted medical evidence that she had been too unwell to submit a claim. The EJ struck out (semantics notwithstanding) under Rule 12 of the Tribunal Rules which means the case was stopped without any hearing. The initial decision was a harsh one and the EAT allowed the appeal and remitted the case to a different EJ to consider afresh whether the claim can proceed.

So, what is the common thread in these three decisions. Leaving aside the apparent propensity of Tribunal staff to send incorrectly addressed correspondence to claimants (see Higgins, Carroll and Sterling) the issue in Carroll and Sterling is the absence of judicial discretion in the application of Tribunal Rules. While others in the union movement disagree by and large I think the addition of mandatory Early Conciliation process is by and large a positive one. However, it also introduces new requirements that give rise to additional errors claimants can make. The ET system is one which was intended to be “easily accessible, informal, speedy and inexpensive”. I suspect if you were to ask the claimants in Carroll or Sterling whether their experience was one which was ‘easily accessible’ or ‘informal’ you may find the answer is negative.

The Rules imposed by the last Government (which in respect to EC are, I think, positive) allowed no discretion for the exceptional case, such as the claimant in fear of her safety or the claimant whose claim is late because of Tribunal sent a form to the wrong address. The result is claims in such circumstances are legitimately refused lawfully whilst at the same time presenting a barrier to justice. That dichotomy needs to change.

More broadly however for employee representatives the cases above also offer a reminder on the need for care when presenting claims. I, like many reps, too frequently leave submitting claims to the very limits of the limitation period, not necessarily out of design but because of workload. That may often be a mistake – had the claimant in Sterling submitted the claim three week’s before the limitation period ended rather than four days previously there is every chance the error (if there was one) would still have been caught in time even if there was an error in the claimant’s address. Likewise, how often do we cross check the ACAS EC number we provide on the form (or check we’ve submitted one) before submitting? Failing to do so could result in a employee being deprived of the opportunity of presenting their case. And again, do we ensure the claim and tick boxes match and the actual nature of the claim is clearly spelt out (especially if a claim form is written by an employee rather than a rep – which may not be advisable but frequently happens). Failing to do so gives a Tribunal the opportunity – however unfairly – to strike out a claim.

Cases:
Cranwell v Cullen [2015] UKEAT 0046_14_2003

Sterling v United Learning Trust [2015] UKEAT 0439_14_1802

Higgins v Home Office & Anor [2015] UKEAT 0296_14_0605

Carroll v The Mayor’s Office For Policing And Crime [2015] UKEAT 0203_14_0902

A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

Race and Caste Discrimination

DalitImagine you work in a company with two employees, both Indian, and an employer who is also Indian. You come from the Dalit caste in the caste system, meanwhile your employer and a fellow employee performing the same role as both share a higher caste. You notice that despite having exactly the same job as your co-worker your manager  is imposing all the degrading tasks to you, you believe that is because of your lower caste.

Back in 2010 when the Equality Act 2010 was enacted a provision was passed that made clear that caste was to be part of the protected characteristic of Race:

5)A Minister of the Crown

(a) Must amend this section so as to provide for caste to be an aspect of race;

(b)may amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.

However, the Conservative led government failed to do this, a decision that was, rightly, a point of criticism alleging “appalling delays” in applying the provision. The result is that for this Indian Dalit who believes they have been the subject of caste discrimination is uncertain she has a legal redress against her employer on race discrimination grounds.

Thankfully, in despite the appalling prevarication of this government there is now some clarity for the many South Asian employees from lower castes, who reports suggest are subject to discrimination but are likely to be afraid of speaking out. A similar situation to that set out above was faced by the claimant in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

In Chandhok the claimant believed the regressive terms and conditions of employment employed were a direct result of her lower caste and made a claim that her employer had directly discriminated her on the grounds of her race. The Respondent sought to strike out the claim on the basis that caste was not constitutive of the protected characteristic of race and that, therefore, the claimant had no legal claim. The first tier tribunal found that the claimant’s caste, although not expressly covered by the characteristics set out in section 9(1) of the Equality Act 2010 could be protected. The employer appealed.

Although the EAT did not find that caste discrimination is always covered by the Race provision of the Equality Act it did find that it may be, on a case by case basis, come within section 9(1)(c) of the 2010 Act, namely “ethnic origins”. The relevant comments are in paragraphs 51 and 52 of the judgement:

51.          It follows that with the omission of the bold assertion from paragraph 54 that “caste discrimination” is prohibited by the Equality Act – as to which the answer must be there is as yet no formal definition of “caste” for those purposes – there may be factual circumstances in which the application of the label “caste” is appropriate, many of which are capable – depending on their facts – of falling within the scope of section 9(1),  particularly coming within “ethnic origins”, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as “ethnic”.  As the Judge put it, caste “is an integral part of the picture” in the present case.

52.          I am particularly happy to have reached this conclusion upon the effect of the wording in the current domestic statute, given its interpretation as expressed in Mandla and in JFS, albeit by reference to the earlier statute.  I do not accept that the effect of section 9(5) of the Equality Act is to limit the scope to which the statutory definition of race extends.  The decisions in those two leading cases remain fully applicable.  Such an interpretation is consistent with the UK’s international obligations, including that derived from ICERD.  On this basis, section 9(5) contains a power to supplement or clarify section 9(1), not to restrict it.  The ERRA leaves open the possibility that there may yet be no formal introduction of “caste” as a separate, and separately defined, species of the genus which is “race”.  The interpretation which I favour is compatible with EU Law.  These are additional reasons for thinking the conclusion to which I had come to be correct.

The working conditions in which members of a lower caste work will often be precarious and low paid. Without a right to seek legal remedy on discrimination grounds such employees are really in a precarious place – and a claim of constructive dismissal would not be open to many of them. In that sense the EAT’s judgement in Chandhok is certainly welcome in that there is now at least some certainty that there is a discrimination claim open to them, if the facts (and ethnic descent) warrant it.

But it is still too vulnerable a position. While the Enterprise and Regulatory Reform Act 2013 made clear that the Government understood that caste was necessarily included in the protected characteristic of race it has failed to make changes to the law to give effect to that view, preferring instead to kick the issue into the long grass of post-general election legislative intent. And the response of the Labour, Conservative and Liberal Democrats to this continuing imprecision is, as the responses to the Dalit Solidarity Network correspondence show, still not good enough.