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Once a tribunal has issued a claim form, is it open to a Respondent to argue that the claim form should have been rejected by the tribunal?

No, held the Court of Appeal in Sainsbury's Supermarkets v Clark & others.

The Equal Pay litigation that has been rumbling on since 2015, for retail workers employed in a number of supermarkets, has returned to the Court of Appeal for at least the fourth time. Previously the supermarkets lost on forcing transfer to the High Court, lost about bringing multiple claims on a single claim form and lost on the issue of whether store workers could compare themselves to warehouse workers. The comparators decision was also upheld by the Supreme Court.

Sainsbury's has again been unsuccessful in trying to have claims struck out for missing Early Conciliation numbers. The details of the decision on the Employment Tribunals Rules of Procedure 2013 are less important than Lord Justice Bean's judgment where he said:

"42. If the tribunal staff reject a claim under Rule 10 or an employment judge rejects it under Rule 12, the claimant may seek reconsideration on the basis that either the decision to reject was wrong or the notified defect can be rectified: see Rule 13(1). But if no such rejection occurs it is to a respondent to argue...that the claim should have been rejected. The respondent's remedy is to raise any points about non-compliance with the Rules...and to seek dismissal of the claim under Rule 27 or apply for it to be struck out under Rule 37.

43. Where such an application is made then the waiver power under Rule 6 is applicable. I regard it as significant that this power is a very wide one. Apart from employer's contract claims with which we are not concerned, Rule 6 applies to any failure to comply with any provision of the Rules other than the requirement to use a prescribed form to present a claim or response..."

The effect of this decision is likely to be that if an employment tribunal misses an incorrect (or missing) Early Conciliation number and sends an ET3 response form to the Respondent, tribunals will, in general, use rule 6 to waive the error. Provided that there is an Early Conciliation certificate that confirms it was completed before the claim was presented, the acceptance of the claim creates the jurisdiction to hear it.

Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.