MR S MAY v GREENWICH COUNCIL [2010] UKEAT 0102_10_1504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0102_10_1504Case No Appeal No. UKEAT/0102/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S MAYAPPELLANTGREENWICH COUNCILRESPONDENT
Before
His Honour Judge SerotaDate 15 April 2010
[1]APPEARANCES For the Appellant MR S MAY (The Appellant in Person) For the Respondent MR M SAHU (of Counsel) Instructed by: London Borough of Greenwich Legal Services 5th floor Riverside House West Woolwich High Street Woolwich London SE18 6DF SUMMARY PRACTICE AND PROCEDURE Case management Striking-out/dismissal The decision of the Employment Tribunal that the Claimant's ET1 was illegible was perverse. Although difficult to read in parts it was perfectly readable in the original without the need for a magnifying glass. The Employment Tribunal had no jurisdiction to refuse to accept the claim under rule 3(2) of the Employment Tribunals Rules of Procedure because of partial illegibility as the ET1 did contain the required details. In any event the refusal to accept the ET1 was disproportionate and contrary to the overriding objective. HIS HONOUR JUDGE SEROTA QC This is an appeal brought by Mr May against the London Borough of Greenwich. Mr May has made a number of claims against the London Borough of Greenwich including claims for unfair dismissal, breach of contract, redundancy payment, failure to provide a statement of terms and conditions and subsequent changes, and discrimination and victimisation on the grounds of race. These claims were presented to the Employment Tribunal at Croydon by an ET1 which, as I understand it and it is not the subject of dispute, was received by the Employment Tribunal on 26 November 2009 and it is so date stamped.[2]I wish to make it absolutely clear that I am saying absolutely nothing at all in this judgment about the merits of Mr May's claims or the fact that Mr May has sought to join as Respondents a number of employees of the London Borough of Greenwich, the Leader of the Council, the HR Directorate and the Council Cabinet. These are matters which may require to be considered at some later stage.[3]Again, as I understand the matter and I have myself not checked the dates, but I have been told by Mr May that he presented his claim on the last available date of the 3-month period permitting him to do so. The claim was completed in manuscript in black ink; much of it was contrary to the guidance set out on the first page of the ET1 not in capital letters. I have had the benefit of seeing the original claim form. I am concerned that it seems to be getting a little smudged as the result of handling and therefore must be kept in its protective sleeve. Mr May was evidently concerned when he completed this form that he should be able to put in all the details of his claim, particularly the substance of his claims, on the form itself, although he does appear to have used one additional sheet. He has explained this. In order to ensure that all matters he considered relevant were included in the form, his writing becomes small and somewhat difficult to read. Further, and perhaps because part of the ET1 form is on pale blue paper it is a document that does not appear to photocopy particularly well and the photocopy in my bundle is significantly less easy to read than the original. I have looked at the original with care, and although parts of it are not easy to read I have been able to read the entire document wearing my glasses but without the assistance of a magnifying glass. It is right to say that parts of the document are perfectly legible. In my opinion a document is legible if it is capable of being read without the need to use a magnifying glass, and illegible if it is not capable of so being read.[4]To continue with the narrative, on 30 November 2009 the Employment Tribunal purporting to act with the Employment Tribunal Rules of Procedure, to which I shall turn in due course, wrote as follows to Mr May:
"REJECTION OF CLAIM Employment Tribunals Rules of Procedure 2004 I am returning the claim because the details on your claim form are illegible. Regional Employment Judge Hildebrand has therefore decided that it cannot be accepted. The accompanying notes tell you how you can re-present your claim. The original time limit for bringing this claim still applies."
[5]Of course, that informed Mr May that the time limit for bringing his claim had in effect expired. Therefore it was open for Mr May to seek a review of the refusal to accept his form but he would undoubtedly have been met if he had produced a more easy to read (I will not say legible) copy of his ET1 with the argument that he could not show any good reason why he could not have produced a legible (I will now use the term "legible") ET1 within the appropriate time limit, and that it would not be appropriate to extend the time in which he might lodge his ET1. On the assumption that the Employment Tribunal was correct in rejecting the original claim form that riposte on the part of the Respondent to an application to extend the time would seem to have had considerable force both in relation to the unfair dismissal and contractual claims and in relation to the discrimination claims where of course the power of the Tribunal to extend time are different. I need not go into the details of that.[6]It is apparent from a document that has been disclosed by Mr May that is the copy to him of the letter of 30 November 2009, that on 1 December he spoke to a gentleman known as "Russell", who was an Employment Tribunals administrator. Mr May noted that he had had a long discussion and that the administrator had told him to submit the form again (a new one) together with a covering letter to explain. It is quite clear that Mr May was therefore aware that he could submit a further claim form but it is also apparent that he could seek a review and that he could seek an extension of time. Indeed, it is fair to say that Mr May in his Notice of Appeal in a passage which is entirely legible, said:
"I intend to resubmit a new/revised/amended application to the Employment Tribunal at Croydon, making clearer text and summarising issues more succinctly. I am making this appeal within the 42-day deadline as a precautionary measure."
[7]Now it is right to say that no such further claim form was ever submitted, and Mr May has explained that that was because his ET1 would have been regarded as out of time.[8]Although Mr Sahu did not go so far as to submit that a failure to seek a review and to lodge, or attempt to lodge, a further ET1 was a bar to Mr May proceeding with this appeal, he did strongly suggest that an application for a review coupled with the presentation of a new ET1 and doubtless an application to extend time would have been a more appropriate course than to pursue an appeal.[9]I have been on record in a number of cases as making clear that where a decision of the Employment Tribunal should properly be the subject of a review it is the duty of the party's legal advisers to seek such a review before presenting an appeal. This is because a review in many cases will obviate the need for an appeal, particularly in cases where the party's complaint is that an Employment Tribunal has made an obvious mistake or where it has failed to deal with part of the claim; see for example Bansi v Alpha Flight Services [2007] ICR 308 . The comments I made in that case were made with the consent of the then President, Mr Justice Burton. However, in the particular circumstances of this case having regard to the potential time bar I do not criticise Mr May for pursuing his appeal rather than attempting to lodge a fresh application.[10]Mr May has done himself no favours in his Notice of Appeal, which is manifestly inconsistent. He says "I am making this appeal as a precautionary measure, as to the advice given by the Employment Tribunal. They provided two pages of advice, dealing with this appeal process and rejected claims, 'your question answered'. There was no specific reference to re-presenting, which was offered to me, nor to claims rejected as illegible. As there would be little point re-submitting the claim in its existing condition (as it would again be rejected) - and indeed, a new claim form was sent to me with the rejection letter - the implication is that I am to be provided with the opportunity to re-present my claim, by rewriting it in a form that can be considered acceptable for all due processes of the E.T. including for respondent. There is also guidance provided in respect of obtaining a review, which if required 'should' be requested within 14 days of the date of the rejection letter. I am not requesting a review of the decision of the E.T." He then says this:
"I agree with the decision of the ET to reject my claim on grounds of illegibility, but to allow me to re-present my claim. All I am requesting, is to be allowed a due time to be able to do so. I will be re-representing my claim in a more clearly legible form, as soon as I can. I would advise that I suffered psychological and physiological medical conditions as a result of my dismissal by my former employer, which necessitated in me requiring two appointments with my Doctor and the effective loss of about half of my time period to make a due employment tribunal claim. I accept that Regional Employment Judge Hildebrand, acting for the E.T. had little alternative than to reject my claim as 'illegible'. I do not accept that it is illegible in the strictest sense of the word, but it is certainly extremely difficult to read and probably requiring a magnifying glass. I accept that it is not fit for purpose. The text is too small and the lines too close together causing an over-cramming effect. The reasons that it occurred was that I was worried that if I did not refer to all issues on the claim form, I may not be allowed to make them part of my case. I then proceeded to provide explanation for each and went into too much detail. Secondly, my case is long-running (over 10 years), complex and extensive. At the time I thought that this method provided the answer to the constrained space allowance. I now realise that this was not the case."
[11]However, Mr May has made clear that he regards the decision rejecting his claim as one that no reasonable tribunal could have reached. He says "it was wrong. It was against all notions of natural justice" so he would also appeal on the grounds that the Tribunal had made a mistake in the application of the law". This of course is inconsistent with his statements that the Employment Tribunal was correct in rejecting his claim on the grounds of illegibility, although that appears to have been subject to the condition that he be allowed to re-present his claim.[12]This matter was considered by HHJ Richardson, who considered that it should go to a full hearing. I have dealt with this matter today simply on the basis as to whether or not the Employment Tribunal was correct to refuse to accept the claim.[13]I think it right to have regard to a number of matters.[14]The first matter to which I draw attention is Rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which sets out the overriding objective of the Regulations, which is to enable tribunals and employment judges to deal with cases justly. Dealing with a case justly includes so far as practicable ensuring that the parties are on an equal footing; dealing in the case in ways which are proportionate to the complexity or importance of the issues; ensuring that it is dealt with expeditiously and fairly and saving expense; and the tribunal or employment judge should seek to give effect to the overriding objective when it or he (and I need not go into details) exercises powers given by the Regulations or interprets any of the Regulations. The parties are also required to assist the tribunal and employment judge to further the overriding interest.[15]I then turn to consider the relevant rules which are to be found in Schedule 1 to the Regulations – the Employment Tribunals Rules of Procedure. Under paragraph 1 "Starting a claim" the rules require that the claim form must be presented on the prescribed form together with the required information: each claimant's name; each claimant's address; the name of each person against whom the claim is made ("the respondent"); each respondent's address; and details of the claim.[16]Regardless of the fact that in my opinion the decision of the Employment Tribunal that the document presented was illegible in the sense it could not be read, and I stress having seen the original that decision is one which is simply unsustainable and the most a reasonable employment judge looking at the original document could have concluded is that the document was not easy to read. It is certainly in its original form, even if not in its photocopied form, perfectly legible in the sense that it can be read. The jurisdiction of the Employment Tribunal under Rule 3 not to accept a claim, as was the case here, can only be exercised so far as is relevant in this case as set out in Rule 3(2). "The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances applies-(a) the claim does not include all the relevant required information; [or](b) the tribunal does not have power to consider the claim (or that relevant part of it) …" The matter is then to be referred to an Employment Judge (see Rule 3(3)) who takes the decision whether the claim or part of it should be accepted and allowed to proceed.[17]Now it is clear from the Rule that it is open to the Employment Tribunal to reject a claim in whole or in part, but in my opinion that rule can only apply to this case if some or all of the relevant details set out in Rule 1(3) are illegible. With the exception of the details or particulars of the claim there is no question as to the readability, if I can put it that way, of the ET1 being subject to rule 3(2). I would have thought that the most the Employment Tribunal could have done if some of the details of the claims were in truth unreadable would have been to accept the balance of the claim which was clearly readable. I accept for the purposes of this judgment that where a claim is truly illegible in the sense that it is unreadable it can fairly be said that the relevant details have not been provided. That, of course, will require a scrutiny of the document and the isolation of those parts which are readable and those parts which are not.[18]Let us rest there because it is necessary to have regard to the effect of a refusal to accept a claim, particularly when the refusal is to accept a claim that contains allegations of discrimination at a time towards the end of the relevant time limit. I have found a passage in a decision of the Employment Appeal Tribunal Coutinho v Rank Nemo (DMS) Limited [2008] UKEAT/0315/08/1609, a decision of HHJ McMullen QC. This is a decision that was in fact approved subsequently by the Court of Appeal although the particular passage which I am about to cite was not referred to. HHJ McMullen considered in that case a decision by the employment tribunal to refuse to accept a claim on the basis it did not consider it had jurisdiction to entertain it.

Judge McMullen had this to say at paragraph 19:

"I would call this a proto-strikeout without elementary safeguards. Nevertheless the approach to strikeout at a rule 18 PHR may be instructive. I take it to be the following: the overriding objective requires a case which the Tribunal has no power to deal with can be rejected under rule 3. That means taking at face value what the Claimant says in his claim form. ..."
[19]I do consider that this decision of the Employment Tribunal is in effect a proto-strikeout and that one needs to have regard to the overriding objective and the approach to striking out. Even if I did not adopt that approach for reasons I have already given, I consider the decision in this case to be one which no reasonable Employment Judge would have arrived at. But in any event, in my opinion, applying the overriding objective, the correct course for an Employment Tribunal to take where part of a claim is illegible is not to refuse to accept it in circumstances where the refusal in effect precludes a claimant from presenting a more readable copy without having to apply for an extension of time to do so. The correct course, in my opinion, is for the Employment Tribunal to require a Claimant to provide a more readable copy within a defined period, and if necessary to impose sanctions on his failure to do so. Illegibility of part of the document would not in any event if the relevant details are there justify refusal to accept the entire claim.[20]I should point out that Mr Sahu did, in his skeleton argument, seek to take another point as to whether the Notice of Appeal was lodged in time. However, having had the benefit of considering the Employment Appeal Tribunal's Practice Direction para. 1(8) and Rule 37 of the Employment Appeal Tribunal's Rules he recognised that this argument was not on the facts of this case open to him.[21]I am very grateful to Mr Sahu who has said just about everything in support of the decision that could properly be said and for his helpful skeleton argument. Nonetheless, for the reasons that I have given, I consider this appeal must be allowed and as Judge McMullen did in the Coutinho case I direct that the claim be accepted.[22]I conclude by repeating what I have already said, I am giving no comfort to either party as to the merits of the claims. I direct that Mr May produces a typed copy without any amendment or alteration of his ET1. I will consider with Mr May how long he requires to do that.