The claimant commenced work with the respondent in October 2018 as a vending operative.  She was dismissed on 23rd August 2019 and she issued proceedings claiming sex and race discrimination on the same day.  In submitting her ET1 form she said ‘no’ to the Early Conciliation Certificate Number.   She stated that ACAS did not have the power to conciliate the claim, which was incorrect.  The Tribunal acknowledges that as a lay person she ticked the box without a full understanding of what was required.

The claimant, despite her responses in the ET1 form, did contact ACAS to outline that there was a dispute.  A certificate was duly issued on 27th August 2019.   She subsequently wrote an email to the Tribunal requesting that the certificate number be added to her form.  The file was referred to an Employment Judge who did raise a query about the ET1 form especially as the Judge was not aware of the email.  Despite that, there was no decision to reject the claim at that point and it was accepted and served.  The respondent replied with an ET3 form focusing on the merits but did not discuss jurisdiction or conciliation.

At hearing the Employment Judge noticed that there was no certificate when the claim was commenced.  The claimant acknowledged that she had not gone to ACAS before submitting her claim, citing that she was unaware of a duty upon her to do so.  Despite that reasoning, the Employment Judge dismissed the claim on jurisdictional grounds. The need to have an Early Conciliation Certificate was mandatory and there was no discretion offered to the Judge.  The response from the Judge did outline that the claimant may want to bring the claims again and consideration of her situation could be taken into account in relation to extending time. Despite that, the claimant decided to appeal the decision to dismiss the claim.

The EAT examined whether the email subsequently sent was a re-presentation of the ET1.  The difficulty is that the rules and associated Practice Direction set out exactly how a claim form can be presented i.e. online, by post or in person.

Therefore, there was no discretion for the EAT to find that there had been a re-presentation when the Certificate was in place.  The second ground of appeal was to ask whether the Tribunal had waived the need to re-present, considering that it had allowed the case to proceed to hearing.  The difficulty, as noted by the EAT, is that to allow such a waiver would be contrary to the express statutory requirement that the certificate be obtained before a claim can be commenced.

Therefore, there was no power for the Tribunal (or the Respondent for that matter) to waive the requirement of re-presentation.  The Tribunal, with regret, stated it must reject the appeal.  The EAT issued a note of hope for the claimant, stating that she should issue a new claim promptly and that the Tribunal will look on such an application sympathetically when it comes to extending time.

Practical Lessons

This case does demonstrate the difficulty with not giving any discretion to the Judge to allow cases to proceed in the face of strict formalities.  Such strict formality is also in place within Rule 9 of the Industrial Tribunal rules which requires that an early conciliation certificate number must be included.

This is disappointing but, as the ET and EAT have discussed here, the way around it may be to re-issue proceedings and have sympathy to the situation when it comes to extending time, especially as the claimant had informed the Tribunal about the certificate number.   To avoid this complication though claimants and their representatives should be mindful of the need to obtain the certificate before submitting the ET1.
https://www.gov.uk/employment-appeal-tribunal-decisions/miss-j-pryce-v-baxterstorey-ltd-2022-eat-61