The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) introduced prescribed forms for Claimants and Respondents to use in tribunal proceedings on 1st October 2004. After a 6 month period when the use of the new Claim and Response forms were voluntary, their use was to become mandatory on 6th April 2005. This commencement date was put back to 1 October 2005. This was to give the ETS time to consider further the inter-relationship between the design of the forms, the methods of submitting them and the ETS’s wish to electronically scan the documents on receipt. We can now report that The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) (No. 2) Regulations 2005 (SI 2005/1865) have been issued. Not only do they confirm the new mandatory commencement date for the use of the forms will definitely be 1st October 2005, they also clarify that the ETS have powers to deal with cases where a national security issue is at stake, and make minor clarifications to, and correct drafting errors in, the main Regulations.
What does it mean?
Whilst at this stage, it’s still not clear the extent to which the ETS have resolved their technical electronic difficulties, it does mean that from 1st October 2005, all Claim forms (ET1s) and Response forms (ET3s) lodged with the Employment Tribunal must either be completed electronically through their online site, or a printed hard copy version obtained from the ETS and completed in manuscript (on the assumption that nowadays most people don’t possess a typewriter!). Hard copies of the Claim forms can only be obtained from the ETS. If responding to a claim, the ET3 form will automatically be posted to you with a copy of the Claim form by the ETS.
Of particular note
Is the position likely to change?
At the time of writing, on enquiry with the ETS as to whether or not they were likely to have downloadable versions of their forms, the response was “we very much doubt it”.
If completing online, it should also be noted that once the form is received by the ETS, it arrives in a layout which is nothing like the online version which has been completed by the user. In the earlier stages of the online version, the forms which printed off at the ETS’s end were simply a continuous run of typescript, which the ETS had then to decipher and fit into the relevant boxes on the form, no doubt much to their annoyance. They have been working on addressing this problem and have managed to get it to a stage where the forms at least follow a logical order when received at the ETS, albeit that they still don’t resemble the hard copies of the forms in any way. We are bemused, as we have been able to replicate the prescribed forms in a format which can be easily transmitted to other parties. However, that said, on 1st October 2005, no-one will be allowed to submit any ET1s or ET3s on anything other than the ETS’s versions of the forms, whether they’re in a better format or not.
Are there any risks if you don’t complete the forms correctly?
Apart from the technical issues, of much more concern is the way in which the ETS is applying its Rules of Procedure. There is a material risk of ET1s or ET3s being declined by the ETS if completed incorrectly. Where, before 1st October 2004, the completion of the various “tick boxes” which contained “formal” details such as dates of employment, if completed wrongly or not completed at all, might be overlooked by the ETS, who were only really interested in the supporting facts of the case, now any mistake made in failing to correctly answer or complete one or more of these boxes will almost certainly automatically cause the form to be knocked back by the ETS – something which is particularly worrying if you’re right at the time limit for compliance. An example of this is the seemingly simple question of whether or not the Claimant is an employee or a worker providing services to you. If the former, the statutory dispute resolution procedures may require to be complied with before any ET1 can be lodged and the ETS will automatically knock back the claim if they have not been completed. If the latter, then no internal procedures require to be gone through prior to submitting a claim.
The Employment Appeal Tribunal’s position
Of some comfort – but definitely not to be relied on - is that the Employment Appeal Tribunal appear to be taking the stance that Employment Tribunals should be taking a fairly benign approach to “technical” breaches in completing ET1s and ET3s. In the recent case of Grimmer v. KLM Cityhopper UK it was held that in some cases it can be argued that it is “in the interests of justice” to allow some ET1s and ET3s to slip through the tight net.
The ETS’s procedures, and the prescribed forms themselves, are much more complicated than before, so take legal advice at the earliest stage possible.