Practicability and modern inventions

Under rule 35 of the Employment Tribunal Rules of Procedure, preliminary consideration of an application for review of an a tribunal decision must be done by the employment judge of the tribunal that made the decision. If that is ‘not practicable,’ preliminary consideration may be carried out by another employment judge. A reader has drawn my attention to a case in which preliminary consideration was carried out by the regional employment judge on the grounds that the employment judge of the original tribunal (in Reading) had been promoted into into the position of regional employment judge in a different region (East Anglia), and it was therefore ‘not practicable’ for him to deal with the application.

This seems odd. Getting documents from one place to another within the UK has been cheap and easy for some time. The Uniform Penny Post was introduced in 1840; the invention of the fax machine followed in 1843 (though admittedly it didn’t catch on in a big way more than another 100 years); and email has been a standard means of business communication for something like 20 years. Even a runner with a message in a cleft stick could probably get a review application from Reading to Bury-St-Edmunds in a matter of days.

Anyone who’s ever been on the wrong end of an employment tribunal’s decision that it was ‘reasonably practicable’ for them to present their ET1 on time will be surprised – and perhaps rather dismayed – to see an employment tribunal holding itself to a much lower standard. There may be perfectly sensible reasons why it’s inconvenient for cases to follow employment judges around when they move from one region to another; but if that’s the case, it should be dealt with by redrafting rule 35 – not by pretending that ‘not practicable’ means ‘inconvenient.’

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