It seems that predictions that the ACAS Early Conciliation (“EC”) scheme would give rise to satellite litigation are beginning to be realised. Although statistics show that the EC scheme is resolving a number of disputes, it is also creating some, and we have recently become aware of the first reported example of a claim being rejected because the Claimant had failed to comply with the EC procedure.
Since 6 May 2014, in most cases, before a claim can be submitted to the Employment Tribunal the potential Claimant must first provide details of their employment dispute to ACAS under the EC scheme and receive an EC certificate confirming that they have done so. If the potential Claimant fails to do so, then the Tribunal will have no jurisdiction to hear the claim.
In the recent case of Thomas v Nationwide Building Society, the Claimant correctly identified on her claim form that she had not obtained an EC certificate, but incorrectly indicated that her claim was exempt from the EC process.
The Respondent raised the issue of jurisdiction and at a hearing to consider this the Tribunal agreed that the claim should have been automatically rejected and accordingly rejected the claim.
However, in this case the Judge noted that the defect was capable of being remedied by the Claimant complying with the EC procedure and, since by the time of that Tribunal hearing, the Claimant had in fact been through the EC procedure, the original claim was permitted to proceed, but treated as having been presented on the date the EC certificate had been issued.
It is interesting to note that the Tribunal did not itself seem to notice the Claimant’s error in indicating that her claim was exempt from the EC procedure, although it would have been apparent from the details on her claim form that it was not.
Here at DWF, we were recently successful in having a claim brought against one of our clients struck out on the basis that the Claimant had failed to raise, during the EC process, the fact that he had an unfair dismissal claim. Although the Claimant had utilised the EC scheme, during which he had raised such issues as underpayment of wages, he had not mentioned unfair dismissal. We made an application for strike out and sent as accompanying evidence a letter sent from ACAS to our client at the start of the EC process in which the EC officer had detailed the matters raised by the Claimant, and in which there was no mention of unfair dismissal. Our application was unchallenged and the Judge struck out the claim.
Both these cases show that identifying failures on the Claimant’s part to comply fully with the EC scheme could enable employers to avoid claims and serve as a reminder to check carefully for compliance.
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