Can an employee submit an early conciliation certificate after they have issued their Claim?
An individual must follow the ACAS early conciliation procedure before they can issue most Claims in the Employment Tribunal. Under the procedure, the individual must notify ACAS of their intention to issue a Claim. ACAS will then contact the individual and ask if they wish to participate in conciliation. If the individual does not wish to conciliate, ACAS will issue an Early Conciliation certificate. The certificate will include an early conciliation reference number.
In order to issue a Claim in the Tribunal, the individual must complete an ET1 form. The ET1 must contain certain early conciliation information in order to be accepted by the Tribunal, including the early conciliation number. The Tribunal must reject the Claim if it does not contain an early conciliation number or confirmation that an exemption applies.
Issuing a Claim without an early conciliation number
Miss P issued claims of sex and race discrimination in the Employment Tribunal. She had not obtained an early conciliation certificate. In the part of the ET1 asking about the early conciliation number, she ticked “no”. The same day, she notified ACAS of the dispute and was told by ACAS that she would need an early conciliation certificate. A few days later, ACAS issued a certificate. Miss P emailed the Tribunal enclosing a copy of the certificate that she had obtained and asked the Tribunal to add the reference number to the form.
The Employment Tribunal initially allowed the claims to proceed. However, at a later Preliminary Hearing, the Judge spotted that the Claims had been presented at a time when there was no early conciliation certificate. The Claims were dismissed because the Tribunal did not have jurisdiction to hear them.
Miss P appealed to the Employment Appeal Tribunal (EAT). The EAT found that at the date the Claim was issued, the Tribunal had no jurisdiction to hear the Claims. It went on to consider whether emailing the certificate to the Tribunal was a re-presentation of the Claim. The EAT found that it was not. The Tribunal rules require a claim to be presented by sending a completed ET1 and the EAT noted that the Tribunal has no power to waive the requirements of the Tribunal rules on this point.
The EAT expressed sympathy with Miss P. She had issued her Claim on the day of her dismissal, obtained the certificate quickly when she realised that was the requirement and sent it to the Tribunal the same day. However, inclusion of an early certification number is a statutory requirement for submission of a Claim in the Employment Tribunal and, without one, it should have been rejected immediately. Emailing the early conciliation certificate to the Tribunal later was not a re-presentation of the Claim.
31 May 2022
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