If in doubt, resubmit

When an Employment Appeal Tribunal opening line in a judgment is “this, I regret to say, is the kind of case that gives the law a bad name” you know it is not going to be good. Such was the opening of HHJ Shanks in Pryce v Baxterstory Limited (2022) in a case about the requirement for a claimant in employment tribunal proceedings to obtain an ACAS early conciliation before the claim is initiated.

The relevant facts can be briefly summarised. On 23 August 2019 she was dismissed and, on the same day, she submitted an employment tribunal claim for discrimination. As an discrimination claim, the claimant was required to obtain an ACAS Early Conciliation Certificate before the claim was lodged and provide the EC number when the claim was submitted; This requirement is set out in the Employment Tribunals Act 1996, the relevant part of which, at 18A(1), states that

Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

Section 18A(1) Employment Tribunals Act 1996.

In fact, later that day (after the claim had been submitted) the claimant did contact ACAS who explained the requirements and and ACAS EC certificate was issued to the claimant. She promptly informed the Tribunal of the new certificate and provided the certificate number. At this point the claimant had done everything that was required of her but she had not done so in the correct order (i.e., she should have obtained the certificate before the claim was issued); that was the only legal mistake she had made.

Thereafter, the Employment Tribunal did not help matters because it went on to “accept” the claim and issue the claim to the respondents and convene a standard case management hearing on 3 February 2020. The February 2020 date is significant because by that time the time limit for an in time discrimination complaint had long expired (on 22 November 2019). What the tribunal should have done was reject the claim and explain to the claimant how the error could be rectified.

At the Preliminary Hearing the judge spotted the error the claimant had made in that the claim was made at a time when no ACAS EC Certificate had been issued by which time, of course, . The claimant accepted she made a mistake.

The employment judge then went on to strike out the claimant’s case on the basis that the tribunal had no jurisdiction to hear it (because the mandatory process set in section 18A(1) of the Employment Tribunals Act 1996 – that ACAS must be contacted before the claim is made- had not happened. However, even though the claim was now late the employment judge gave a hint to the claimant that she could rescue the situation by re-submitting the claim:

This is a jurisdictional matter and I do not have any discretion under it. This Claim was lodged prior to an EC Certificate being issued in circumstances where having one is a mandatory prerequisite to bringing a Claim … Accordingly, these claims must be dismissed. It is a matter for the Claimant as to whether she brings these claims again. If she does so then consideration will be given as to whether the Tribunal has jurisdiction to consider them taking into account time limits and the relevant statutory provisions for extending the same.

The claimant did not take the hint and resubmit the claim (this would have been sensible I think, even if she proceeded to an appeal as well) but she did appeal. The EAT as the opening line of the judgment indicates was very sympathetic to the claimant’s situation and gave a strong hint in the final paragraph that a late application could be viewed sympathetically and proceed out of time, saying: “I therefore very much hope that if she now issues a new claim promptly with all the right boxes filled in and applies for an extension of time, the employment tribunal will look on such an application sympathetically, notwithstanding the further time that has passed.”

However, as matter of law, because Parliament had set the bounds for the Tribunal’s jurisdiction (contacting ACAS before a claim in section 18A) that had not been met by the claimant the EAT found that, irrespective of unfairness to the claimant, the Tribunal did not have the power to hear the case. I do think that is unfair (and potentially more so in non discrimination cases) but that is a problem of the law as drafted rather than the the EAT’s decision as drafted. That said, one of the grounds of the appeal was that when the claimant supplied the certificate that was a ‘re-presentation’ of the claim and that may, I think, have a bit more mileage as an argument on statutory interpretation the courts proper could have considered. I very much doubt this case will be subject of further appeal but if it was it would be interesting to see this considered.

What should have happened in the case is that when the claim was submitted without the prior ACAS conduct the claim should have been rejected straight away under the Tribunal Rules (Rule 12 in this case) which would have allowed the claimant to correct her error there and then before the time-limit expired. In doing nothing, the tribunal unwittingly but unfairly wound down the clock so that by the time the claimant was aware there was a problem it was already too late.

The saving grace, from the claimant’s perspective is that because this is a discrimination case the Tribunal has a lot more discretion to allow a claim to proceed if it is out of time if it is “just and equitable” to do so (section 123(1)(b) of the Equality Act 2010). While not guaranteed one would hope that the claimant will be allowed to proceed with her case if this was re-submitted promptly.

But the harshness of the rule is more pronounced if the claim being pursued was on the “reasonably practicable” test such as a claim for unfair dismissal. This is a notoriously hard threshold to meet and I question whether the claimant could have been successful with such a test (it is possible but certainly a much harder task). In the same situation a harsh jurisdictional rule (there is no reason this could not be amended to allow remedial action before the proceedings formally start) and employment tribunal errors in not rejecting the case timeously would have left the claimant without any right to redress.

Aside for the potential for injustice there are a couple of issues in the case employees and their representatives should consider:

First, except for a few exceptions all employment tribunal claims must be lodged with a ACAS EC certificate number – this means you have to contact ACAS, whether or not you have any intention to conciliate.

Second, if you find yourself having made a mistake like the claimant here which could mean the tribunal does not have jurisdiction then the best response is to resubmit the claim after these have been corrected in time so that there is a valid in time application. You can then write to the tribunal and explain that the earlier application was incomplete and is withdrawn. Had the claimant resubmitted her claim on 23 August after having contacted ACAS the difficulties she encountered could have been avoided.

Third, when it works properly a tribunal will identify an issue and reject the claim, allowing the claimant to be aware of the issue and correct this. However, if the claim is made very late in the day then , by the time the rejection comes. the time limit for a valid claim may have expired. So it is good practice not to leave the claim date to the last minute without good reason.

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