Since 1 October 2005, all claims to Employment Tribunals, other than in specified proceedings, must be presented on a form ET1, prescribed in accordance with Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
In the case of Grant v In 2 Focus Sales Development Services Ltd., the Employment Appeal Tribunal (EAT) heard that the Tribunal Secretary had refused to accept Mr Grant's ET1 form because it was not presented on the prescribed form. A prescribed claim form was provided and Mr Grant had faxed this fresh application to the Tribunal offices, but this too was rejected and no explanation was given as to why.
In fact, both claims had been presented using the correct form. Although no explanation was forthcoming, it seems that both were rejected because they had somehow shrunk in the faxing process and so were smaller than the prescribed form.
Mr Grant sought a review of these decisions but was refused on the grounds that the rejection of the forms was an administrative function and the rules did not provide for a review. He therefore appealed to the EAT.
The first point at issue was whether the EAT had jurisdiction to hear the appeal. It was argued that the Tribunal Secretary was exercising an 'administrative discretion' and that no point of law was involved. The EAT disagreed. Even if it was an administrative decision, it still had to be exercised in accordance with the law and, in the EAT's view, it was 'a constitutional outrage to suggest that a public official could act in breach of the powers conferred on him and yet be subject to no legal control'.
Furthermore, Mr Grant had made an application for a review and was refused so was entitled to challenge the decision to reject the claims. The EAT did therefore have jurisdiction to hear the claim.
Secondly, had the Tribunal erred in law in declining to accept the claims?
There is nothing in the Rules to suggest that potential claimants have to ensure that the ET1 form reaches the Tribunal measuring exactly the same size as it did when it was sent. In the EAT's view, where faxing is a legitimate way of lodging the claim, then any reduction in size resulting from the faxing process must be deemed to have been an acceptable consequence of the process. Otherwise, 'the ludicrous result is that you can fax the form but it will be rejected'. Also, the EAT did not consider size to be an essential feature of the prescribed form such that a variation in size would result in it not being considered acceptable. If forms were to be rejected if they did not reach the Tribunal in a prescribed size then this ought to be made 'crystal clear'.
Before the EAT published this judgment, the decision to reject Mr Grant's claim form was the subject of a review by the Tribunal Chairman, who accepted and upheld the application for review.
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