The claimant was employed by the respondent until her dismissal on 28th July 2020.   The issue arising in this preliminary hearing is that the claimant did not submit her ET1 form until 10th January 2021 which was over two months outside of the time limit which elapsed on 28th October 2020.

The difficulty was that the claimant first issued an ET1 on 15th September 2020, which was within the time limit.  She did not lodge any early conciliation number or certificate with her claim, and it was subsequently rejected. The need for the early conciliation number is required under Rule 9(3)(b)(i) of the Industrial Tribunal rules.  She then submitted another ET1 form on 13th October, again within the time limit, which did have an early conciliation number, but this had stipulated a different name for the prospective respondent compared to the early conciliation certificate.  The claimant was not informed of her ET1 being rejected until 7th January and was told that she could ask for a reconsideration of the rejection within 21 days.   Instead of asking for reconsideration, the claimant resubmitted the ET1 form again outlining the respondent correctly in line with the early conciliation certificate.

The claimant argued that she should be able to continue with her claim on the basis that she was unfamiliar with the rules regarding tribunal claims and that she had promptly corrected her mistakes when she had been informed. The respondent stated that making mistakes in filling out the form should not be a sufficient reason. They also stated that the Tribunal website has sufficient information to assist claimants in completing the forms correctly.

The Tribunal outlined that the issue of whether it was reasonably practicable to submit a claim on time is one of fact for it to decide. It was found that it was not reasonably practicable for the claimant to lodge her claim within time and that she did submit when it was reasonably practicable.  This was on the basis that when she was informed of the errors, she took quick action to remedy the mistakes. Furthermore, the Tribunal outlined that due to a backlog caused by Covid-19 there was only communication of the second mistake in early January. Therefore, it would be wrong to suggest that the claimant should have issued before knowing that her initial issuance of the ET1 was incorrect. The Tribunal also made it clear that the presentation of early conciliation numbers and certificates can be complicated even for those who are experienced in employment law. Accordingly, the Tribunal found that the claim was not time barred and it could continue.

Practical Lessons

This case demonstrates that there is a degree of flexibility when it comes to allowing an extension of time when it comes to errors as a result of failing to complete the paperwork correctly when it comes to early conciliation.  The Tribunal, practitioners and personal litigants are still having to come to terms with early conciliation and it is useful that the Tribunal recognises some of the difficulties.  It is also clear that the effects of Covid-19 and the backlog within the Tribunal is coming to bear with the Tribunal responding slowly to ET1’s and outlining that they have been rejected.  This must also be taken into account for those who have to re-submit.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/