14 January 2015
Early conciliation – belated compliance still ‘pre-claim’
For Employment Tribunal (ET) claims lodged on or after 6 May 2014, it is a legal requirement, unless an exemption applies, for the claimant to first notify the Advisory, Conciliation and Arbitration Service (Acas) by completing an Early Conciliation notification form. ET claims will not be accepted unless this procedure has been followed and a formal Early Conciliation certificate has been issued.
Thomas v Nationwide Building Society is the first reported case of a claim being rejected by the ET because the claimant had failed to comply with the new rules.
Miss Thomas claimed that she had suffered a detriment for making a protected disclosure and presented her ET1 claim form on 8 August 2014. She mistakenly believed that her whistleblowing claim was exempt from the Early Conciliation rules and so no certificate was obtained. Spotting her error, her employer, Nationwide Building Society, argued that the ET did not have jurisdiction to hear her claim.
Meanwhile, Miss Thomas had notified Acas of her claim and obtained an Early Conciliation certificate.
Rule 13(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that where the ET decides that the original rejection was correct but the defect has been put right, the claim will be treated as presented on the date the defect was rectified. The ET ruled that non-compliance with the Early Conciliation rules was a defect capable of rectification. The conciliation attempt still took place 'pre-claim' and to find otherwise would be to deny Miss Thomas access to justice. Furthermore, it was not necessary for her to submit a fresh ET1 claim form as the submission date was the date on which she obtained her Early Conciliation certificate, which was 7 October 2014.
There will now be a further hearing to consider Nationwide's contention that the claim is time-barred as a result of the later presentation date.
Kathryn Fielder, senior associate in the B P Collins Employment team says "Clearly, any claimant who fails to follow the correct procedure as regards Early Conciliation will need to act swiftly to remedy the situation if they are not to fall foul of the time limits that apply when bringing a claim. Employers facing an ET claim are advised to check for errors such as failure to comply with the Early Conciliation procedure and whether or not the claim has been presented in time. It is worth noting that the decision in this case was at ET level, so is not binding, and we will report on further cases as they arise."