Too late to conciliate?

22 Oct

As anyone about to bring a claim in the Employment Tribunal should know, it is now compulsory to engage in Early Conciliation via ACAS before issuing proceedings. A case heard last week has highlighted the consequences of failing to do so.

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As anyone about to bring a claim in the Employment Tribunal should know, it is now compulsory to engage in Early Conciliation via ACAS before issuing proceedings. A case heard last week has highlighted the consequences of failing to do so.


The Early Conciliation procedure has been a mandatory precursor to issuing a claim (in most cases) since 6 May 2014. The process is relatively straightforward (you’ll find a short factsheet here ) but it needs to be adhered to carefully to ensure the Employment Tribunal has jurisdiction to hear your claim.


Last week the case of Thomas v Nationwide Building Society (a whistleblowing claim) went before Employment Judge Clarke in Cardiff to decide two preliminary matters:


1) Whether the tribunal ought to reject the claim by reason of the claimant’s failure to embark on the ACAS early conciliation procedure; and
 
2) If the claimant contacted ACAS retrospectively, whether the tribunal could then revoke any decision to reject her claim under its powers of reconsideration.

In this case, the claimant’s solicitors had ticked a box on the ET1 form which contended that she was exempt from the Early Conciliation procedure (on the basis that ACAS was not empowered to conciliate on all or part of her claim). The claim form did not therefore contain the early conciliation number which would otherwise be required to prevent administrative rejection of the claim.

This contention that an exemption applied was, it turned out, erroneous. Consequently (as was both conceded by the claimant’s solicitors and confirmed by the judge in his reasons) the claim form was defective. It was therefore right to reject the claim pursuant to Rule 12(2) of the Employment Tribunal Rules of Procedure 2013.

However, the claimant had, shortly before the hearing, commenced and completed the Early Conciliation process, and the required certificate was presented to the judge. The judge took the view that, as the original claim had not been validly presented, this still amounted to pre-claim conciliation. It followed, in Employment Judge Clarke’s view, that embarking on the Early Conciliation procedure with ACAS post-rejection would therefore be capable of rectifying a failure to have done so pre-issue.

Rule 13(4) provides that “If the judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified.” This was the judge’s conclusion on reconsideration of the rejection. As the defect in the claim form had been rectified, the claim would be treated as having been validly presented on the date the (belated) Early Conciliation period ended.

Of course, this means that the claimant will not have to lodge a fresh ET1 form or pay a new issue fee. However, she will now face a further jurisdictional challenge: the failure to conciliate pre-issue has delayed the effective presentation date of her claim by two months and there is likely to be a further preliminary hearing to decide whether some aspects of her claim have now been presented out of time.

 

You can find short factsheets here.

 
 Adrian Peck

 

For more information on Employment Law, click here.