Marks & Spencer Faces Employment Appeal Tribunal Scrutiny Over Rule 3(10) Hearing Procedures
A recent EAT judgment clarifies respondent participation at Rule 3(10) hearings, impacting cases like Harkins v Marks & Spencer PLC.
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Employment Appeal Tribunal Clarifies Respondent's Role in Rule 3(10) Hearings
A recent Employment Appeal Tribunal (EAT) judgment has shed light on the limited circumstances under which a respondent can make submissions during a Rule 3(10) hearing. The case, Harkins v Marks & Spencer PLC, centred on procedural matters arising after an appeal was lodged with the EAT.
Following an appeal submission, cases are initially "sifted" by an EAT Judge to determine if there are reasonable grounds for the appeal to proceed. If a judge believes grounds should not proceed, they issue a Rule 3(7) letter. A prospective appellant dissatisfied with this opinion can then apply for a Rule 3(10) hearing.
These hearings are designed for a brief assessment, typically lasting one hour, with a focus on clear and concise submissions from the appellant. Generally, only the appellant attends, although respondents are notified and may occasionally observe. The EAT Practice Direction clarifies that respondents "will not usually be able to speak" at these hearings.
However, in "very limited circumstances," a respondent may be permitted to make brief submissions. This is usually only allowed if it assists the judge with a specific issue, and not as a right to argue the substance of the appeal. The judgment stressed that Rule 3(10) hearings are not intended to be a "dress rehearsal" for the full appeal, and respondents attempting to argue substantive matters are likely to be disappointed and may even inadvertently strengthen the appellant's case.
In the Harkins v Marks & Spencer PLC case, the respondent submitted a skeleton argument that addressed several grounds of appeal and highlighted an issue with a specific factual finding. This led the appellant's counsel to withdraw that particular ground. While the judge acknowledged the respondent's attempt to assist, they noted that it was a rare occurrence for such input to be necessary or beneficial for grounds proceeding to a full hearing.
The EAT emphasised that, save for exceptional circumstances, respondents should refrain from making submissions at Rule 3(10) applications. If a respondent's input is deemed helpful at the sift stage, a Preliminary Hearing would typically be scheduled, where specific directions for respondent submissions would be provided.
Read the entire judgment here: Harkins v Marks & Spencer Plc EAT 70
