Jason Braier Profile picture
Mar 28, 2018 17 tweets 4 min read Twitter logo Read on Twitter
1/ The Court of Appeal's judgment in Secretary of State for BEIS v Parry and Trustees of the William Jones's School Foundation is fascinating for a whole host of reasons, perhaps particularly a little bit of obiter thrown in at the end bailii.org/ew/cases/EWCA/… #ukemplaw
2/ First, unusually this was an appeal brought by a non-party to the original hearing and to the EAT appeal. All parties accepted (eventually) the CA had jurisdiction. The SoS had only appealed in shock and horror at an ultra vires ruling without being added as a party.
3/ The case was a bit of a mess from the start. On the ET1 the unfair dismissal and arrears of pay boxes were ticked. In box 8.2 (the details of claim box) 'Please see attached' was written, but particulars of the wrong claim were attached. I believe the right emoji is 🤦‍♂️
4/ The matter was then referred to an EJ to determine under ET Rule 12(1)(b) whether the ET1 could be sensibly responded to.
5/ An EJ declined to reject the claim. The ET1 was then sent to the school with the standard notice saying the claim had been accepted, but without any mention of the judicial decision to that effect.
6/ No particulars were sent to the school. They called the ET who said they had none. The school then requested the claim to be rejected under r.12(1)(b).
7/ The claimant provided the ET with the correct details and resisted the school's request. The matter came for hearing and the claimant sought to amend as per the submitted details.
8/ The ET then held the school's request couldn't be determined as it amounted to an application for reconsideration of the 1st EJ's acceptance of the claim, & under r.13 reconsideration was not open to a respondent. As acceptance was not a judgment, r.70-73 didn't help either.
9/ At the EAT, Laing J held that the claim as presented was not one that could sensibly be responded to so should have been rejected, and that the decision was perverse. However, that wasn't Laing J's real focus.
10/ For 2 days before the hearing, her clerk contacted counsel to ask them to address her on whether r.12(1)(b) was ultra vires the power to make delegated legislation granted under s.7(3B) of the ETA 1996.
11/ Having raised that issue she decided that she was right. The Secretary of State was not invited to intervene, as it should have been, so no submissions were made on behalf of those who drafted the legislation.
12/ The Court of Appeal reacted with some dismay. First, they held that the issue of vires should not have been considered without inviting the SoS to intervene.
13/ Then the CA disagreed with the Laing J on whether the ET1 could have sensibly been responded to. Bean LJ held the respondent knew the claimant had been dismissed and re-engaged the following day and could have put in a brief response, with further particulars later.
14/ The situation would, perhaps, have been different with an unparticularised discrimination claim, so Bean LJ was not laying down a general rule that when boxes are ticked the claim can always been sensibly responded to.
15/ Bean LJ then dealt with the question of vires. The CA had an advantage over the EAT, having heard submissions from the SoS. The CA held the rule to be intra vires, principally as a rejection isn't a determination of proceedings but a finding that no valid claim has been made
16/ And now to the interesting obiter. Bean LJ considered r.13(4) may be ultra vires. That's the rule that holds that where a claim is rejected but allowed back in on correction of a defect, the claim is deemed presented on the date of that decision. #ukemplaw
17/ It's a rule whose impact has been overcome in a couple of EAT cases by a somewhat kindly application of the 'not reasonably practicable' test.

Bean LJ was alone in this obiter. Neither Newey nor Arden LJJ wanted to bite, Arden noting the point hadn't been argued.

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More from @JasonBraier

Mar 28, 2018
1/ CA judgment was handed down today in Abertawe Bro Morgannwg University Local Health Board v Morgan. It'll be the go-to case for Claimants seeking a just and equitable extension of time under the Equality Act. #ukemplaw
2/ First, the Court deals with s.123(4), dismissing an argument by the Board that the date time runs from in an omission case must also be considered the date of breach.
3/ The CA then turns to the 'just and equitable' discretion, starting by restating the well known approach to the Limitation Act s.33 factors set out in Keeble and clarified in Afolabi as not being a checklist. Leggatt considers the position more closely analogous to s.7(5) HRA.
Read 9 tweets
Nov 29, 2017
1/ Thread: The CJEU judgment in the holiday pay case of King v Sash Windows is out and is a 'must-read' for all #ukemplaw practitioners. curia.europa.eu/juris/document…
2/ As you'll know, Mr King worked for Sash Windows for 13 years and was never paid for taking annual leave. This meant some years he was reluctant to take it. #ukemplaw
3/ On retirement he brought a claim for (1) pay for holiday accrued but untaken in his final leave year; (2) pay for holiday taken throughout the 13 years; and (3) payment in lieu for accrued but untaken holiday throughout the 13 years.
Read 10 tweets

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