Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Failure to have early conciliation does not remove the competency/jurisdiction of the Tribunal to hear the claim.
The claimant started a claim without first contacting ACAS or obtaining an early conciliation certificate. The error was not spotted and the Tribunal did not reject the claim. It was only at a later case management hearing that the respondent argued that it should be rejected for the failure. The Tribunal then rejected the claim and then permitted an amendment to re-commence the identical claim.
The respondent appealed against that decision stating that the decision should have been a strike out for want of jurisdiction.
The EAT held that the fact the claim had been presented without complying with the need for early conciliation did not instantly mean there was no jurisdiction to hear the claim. To that end, Section 18A of the 1996 Act did not provide an absolute bar to the Tribunal considering the claim. It was, instead, an obligation on a prospective claimant to consider whether to take advantage of the ACAS conciliation scheme. It ordinarily follows that claims without the required information should not be issued by the Tribunal but it did not mean that the Tribunal did not have competence (i.e. jurisdiction) to hear the claim. Therefore, the claim could be continued.
A procedural focus on this case but demonstrates that the failure to have early conciliation does not instantly mean that the Tribunal loses jurisdiction to hear the claim. They are within their rights to reject the claim on that ground on the basis that the required information was not part of the claim but it does not remove the competency of the Tribunal to hear the claim. It must be noted that this was in England and Wales and would only be persuasive, rather than binding, in Northern Ireland. The NI Tribunals may take a different approach to how the legislation would be interpreted in this regard.
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