As we have previously reported, in order for a claimant to bring a claim in the Employment Tribunal, they first have to contact ACAS in order to go through the Early Conciliation process. That process may be no more than the claimant telling ACAS that they do not wish to enter into conciliation with their former employer (as dealt with in our article here), but if they do not go through the process and get an Early Conciliation number they cannot proceed to bring a claim.
There have been a couple of recent cases on the impact of the scheme. In the first, Cranwell v Cullen (2015), Mrs Cullen alleged that she had been sexually harassed by her employer and had an injunction out against the employer and certain individuals who worked for them. She filed a claim in the Employment Tribunal without going through the Early Conciliation process. She believed that the Early Conciliation process would mean that she may have to conciliate with her employer, and this is something she did not want to do. The Employment Tribunal rejected her application as she had not complied with the statutory requirement to go through the Early Conciliation process. Mrs Cullen appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal rejected her appeal. They considered the Tribunal Rules of Procedure and the legislation and concluded that they did not give the Employment Judge any discretion to allow her claim to proceed, irrespective of the merits or otherwise of her reasons. If Mrs Cullen had sought specialist advice she would of course have discovered that her fears were ill founded, but sadly she did not.
The second case, Sterling v United Learning Trust (2015), is a cautionary tale about attention to detail and not leaving things to the last minute. In this case the claimant used a non legally qualified representative and they filed a claim with the Employment Tribunal four days before the time limit expired. She did have an Early Conciliation number, but some digits from this were omitted from the claim form. The Tribunal returned the form to her two days later, but wrongly addressed it so that it was not sent to Mrs Sterling or her representative, but rather to a neighbour’s house. When this was given to Mrs Sterling she immediately corrected the form and returned it to the Tribunal – but by now it was out of time. The Employment Judge rejected the application as being out of time.
Mrs Sterling appealed to the Employment Appeal Tribunal. They rejected her appeal. The Rules of Procedure require the Employment Tribunal to reject a claim if the Early Conciliation number is missing, although a party may apply for a reconsideration of such a rejection. No such application was made by Mrs Sterling’s representative, and even though the representative was not legally qualified, the Employment Appeal Tribunal said the Employment Tribunal was entitled to conclude that no such application was forthcoming. The representative also failed to argue that it was not reasonably practicable for the employee to have lodged the claim in time. This argument may well have succeeded had it been made properly as the fault was, at least in part, by the Tribunal.
The moral in this case is clear – pay attention to detail and don’t trust unqualified representatives!
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).