If an employee wants to bring an employment tribunal claim, they must first go through Acas early conciliation (Acas EC) and wait to receive a certificate. The certificate number must then be listed on the form. The claim must be rejected if Acas EC has not been completed. The tribunal rules also say a claim must be brought on the prescribed ET1 form, which includes boxes to tick to show Acas EC has been completed. The ET1 form can only be submitted online (via the tribunal portal), by post or delivered in person. A recent case has shown how strict those rules are and how the tribunal has no discretion to waive them, however much they might want to.
In Pryce v Baxterstorey, the employee worked as an operator who was dismissed after less than a year’s service. She brought claims for sex and race discrimination on the day she was dismissed. She had not yet started Acas EC. She did not fully understand the tribunal application process or what was required in order to lodge a claim. She ticked the box on the ET1 form saying she did not have an Acas EC certificate and ticked a further box saying, wrongly, that early conciliation was not required. She then contacted Acas, who told her she needed an Acas certificate before she could bring a tribunal claim. Acas issued the EC certificate 4 days later. The employee sent the certificate to the tribunal the same day, asking them to add the certificate number to the form. By mistake, the tribunal accepted the claim when it should have rejected it for being lodged before Acas EC had been completed. The error was only discovered at a hearing just after the limitation period had expired. The employee said that she didn’t realise at the time that she needed to go through the Acas process first. Had the tribunal told her that, within the 3-month time period, she would have re-lodged the claim. The judge said he had no option but to dismiss the claim. The employee appealed.
The EAT judge in this case said that this was the kind of case that gives the law a bad name. An employment tribunal claim can only be presented on the prescribed form and in the prescribed ways, which don’t include email. Therefore the employee’s email to the tribunal giving the EC certificate number could not be considered as lodging a claim. If a claim couldn’t be presented that way, then nor could that process be considered the ‘re-presentation’ of a claim either. The tribunal had no power to waive those requirements. Although the tribunal rules allow for other irregularities to be waived, that doesn’t include the situation where the claim is lodged before getting an Acas EC certificate. The requirement to get an EC certificate before lodging a tribunal claim is a statutory requirement that cannot be waived by the tribunal. The only solution here is to lodge a new claim on a new ET1 form. The EAT noted that the rules provide for rejecting claim forms that are non-compliant and for reconsideration and rectification in some cases, but those rules do not refer to the mistake in question – lodging a claim before getting an Acas certificate. The EAT judge was left with no option but to reject the appeal, whilst saying he had a great deal of sympathy for the employee. He encouraged her to relodge the claim and throw herself on the mercy of the tribunal, indicating that in the absence of other relevant circumstances, the application should be looked on ‘sympathetically’.
This case shows how rigid the tribunal rules are in relation to lodging claims on the prescribed form. The rules are in place to ensure that employees have tried to address the issue informally before they call on the tribunal to resolve the dispute. However, in this case, the rules operated as an obstacle to justice. As the judge pointed out, the employee did everything she thought she needed to – she lodged the claim on the day she was dismissed and sent the certificate to the tribunal 4 days later. The tribunal’s own mistakes were just as crucial here and prevented the employee from understanding her error and having the opportunity to rectify it within the normal limitation period. Although success in her discrimination claims is not guaranteed, she must be odds-on for having any new claim accepted out of time.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].
