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Late Early Conciliation: conflicting tribunal decisions by Grahame Anderson.
Can a claimant provide an Early Conciliation (EC) number after a claim has been issued? That question is under consideration in Ahmed v Arearose Limited UKEAT/0314/15 (which has been remitted to an employment tribunal by the EAT).
The Employment Tribunals Act, section 18A provides as follows: “(1) 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” (emphasis added).
The ET rules say “the Tribunal shall reject the claim if it does not contain…an early conciliation number” (emphasis added) (rule 10(c)(i)). Rejections, however, may be reconsidered under rule 13, which provides that “A claimant whose claim has been rejected (in whole or in part) under rule 10… may apply for a reconsideration on the basis that … the notified defect can be rectified” (rule 13(1)(b)). If an employment judge decides that the original rejection was correct but that the defect has been rectified, the claim will be treated as presented on the date that the defect was rectified (rule 13(4)).
The facts of Ahmed, the EAT said, are a muddle. In short, on 24 June 2015, the claimant’s solicitors presented an ET1 without an EC number. On 25 June 2015, they contacted Acas and were given an EC number which they forwarded to the tribunal. On 26 June 2015, when Acas issued an EC certificate with a slightly extended number, they sent this by email to the tribunal asking for it to be added to their client’s ET1.
On 17 July 2015, a reconsideration application was rejected because they had “not provided an Early Conciliation Certificate which is only supplied by ACAS at the end of the conciliation period or alternatively please explain why you say that ACAS does not have the power to conciliate all or part of your claim.”
In slightly unclear terms, the solicitors asked to renew their application at a hearing: “if the Tribunal decided not to grant permission the claimant requested to decide the claim at a hearing in which case claimant would like to submit further arguments” [sic]. The EAT took the view that this did amount to a request for a hearing and remitted it on that basis. It did not express a clear view on whether or not the defect in the claim form could be rectified by anex post facto EC certificate, though seemed to suggest that permission to appeal would be granted to consider it after the remitted decision was made.
The case of Thomas v Nationwide Building Society ET/1601342/14 will not be binding on the Ahmed tribunal but is an example of a case in which the claimant was allowed to rectify the absence of an EC Certificate after having instituted proceedings. The judge determined that not allowing the claimant to rectify would adversely impact her access to justice.
My experience is that tribunals give a wide margin to claimants when it comes to Early Conciliation. Leaving aside the technical pitfalls of the scheme when it comes to extension of time to present a claim, tribunals are unwilling to scrutinise to any extent the content or plausible content of the conciliation. Recently, between a closed and an open preliminary hearing in a case, I was running a point that, since Early Conciliation had taken place before a claimant’s dismissal, there could not possibly have been conciliation in respect of her unfair dismissal claim and so it stood to be struck out at the latter hearing. In the interim, however, HHJ Eady QC decided Science Warehouse Limited v Mills UKEAT/0224/15 which put paid to my argument. The case is authority for the proposition that section 18A of the Act will be satisfied where there is an EC Certificate in respect of a “matter” rather than the more specific “claim”. I have difficulties with that decision but it demonstrates the permissive approach that Tribunals and now the EAT take towards the strictness of the requirements of Early Conciliation. The decision in Mills was followed by the EAT in Mist v Derby Community Health Services NHS Trust UKEAT/0170/15andDrake International Systems Ltd and others v Blue Arrow Ltd UKEAT/0282/15.
My view is that it will be possible to rectify the absence of Early Conciliation after the presentation of the ET1. Tribunals adopt a permissive approach when it comes to Early Conciliation and will look for ways that mean a claimant is permitted to bring her claim. As the judge says in Thomas, an ET1 presented without an EC number is not a valid claim; if it is rectified it is as if the claim is presented at the point of rectification. It follows, therefore, that the Early Conciliation does take place before the institution of relevant proceedings. That approach is in line both with s18A of the 1996 Act, and the ET Rules. The question will then be a separate one: whether the rectification is in time or not.
