ACAS Early Conciliation- the harsh reality

The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 came into force on 6th April 2014 introducing mandatory conciliation in employment disputes as a precursor to eligibility for bringing a claim before an employment tribunal.

We are over a year on and starting to see some satellite litigation on the operation and enforcement of the regulations, albeit not the volume that was predicted. Two recent cases in particular have highlighted the potentially harsh reality of the operation of the ACAS Early Conciliation process.

In Sterling v United Learning Trust [2015] UKEAT 0439_14_1802, before the tribunal on 18th February 2015, it was held that an employment tribunal were entitled to reject a claim form that was submitted out of time due to the Claimant entering the wrong Early Conciliation number.

In this cautionary tale the Claimant submitted her ET1 ‘missing some digits from the EC number’, four days before the expiry of the limitation period. It was returned by the tribunal office two days later, with an accompanying letter. The address used by the office was neither that of the Claimant’s representative nor her home. It ultimately arrived at a neighbour’s house and the Claimant re-submitted it immediately, albeit she was now out of time.

On appeal, the EAT (Langstaff J) held that rule 10(1)(c)(i) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, obliges the employment tribunal to reject a claim if the EC number is missing, although a party may apply for a reconsideration of such a rejection. In this case the Claimant’s non-legally qualified representative had failed to make such an application, nor argue that it was not reasonably practicable for the Claimant to have lodged the claim in time. The EAT dismissed the appeal concluding that there was a duty on the employee to ensure that the EC number was cited correctly.

In Cranwell v Cullen [2015] UKEAT 0046_14_2003, heard 20th March 2015, it was held that an employment tribunal cannot hear a claim if the ACAS early conciliation requirements have not been met. Here, the Claimant put in a claim to an employment tribunal without previously complying with the requirement, in s.18A of the Employment Tribunals Act 1996, to supply prescribed information to ACAS. No statutory exemption from this requirement applied on the facts of the case. The Employment Judge rejected the claim on this ground. The EAT (Langstaff J) upheld that decision. This was a sad case. If her allegations were true, the Claimant had been appallingly treated, including being sexually harassed. She may have thought ACAS conciliation meant having to talk to the person meting out the treatment. Moreover, she had an injunction out against the employer. But, outside of the permitted exemptions the Employment Judge had no choice. The requirement for ACAS early Conciliation was absolute and strict. There was nothing in the Employment Tribunal Rules of Procedure that allowed discretion, even in a case which attracted the fullest sympathy of the Employment Judge and the President of the EAT- as can be seen at paragraph 13-14 of the judgment: ‘A Tribunal may well look on that application with considerable sympathy in the particular circumstances of her case, and bearing in mind the fact that she may not have appreciated that the early conciliation certificate did not necessarily involve her first having to have had contact with the man who had treated her so badly, assuming her claims to be correct… however… I simply cannot see that there is here, even arguably, an error of law in the decision which Judge Gall took.  Though I might have wished to have been able to reach another conclusion, I cannot do so and therefore this claim is dismissed for the reasons I have given.’

For more information, please contact Sarah Hornblower, barrister at Magdalen Chambers.