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EAT Decision Highlights Inflexibility of Tribunal Rules

on Thursday, 19 May 2022.

The Tribunal had no jurisdiction to hear a claim where the Claimant sent her ACAS early conciliation certificate to the Tribunal four days after she submitted her claim form.

Issues with Early Conciliation Certificate

In Pryce v BaxterStorey Ltd, Ms Pryce was dismissed on 23 August 2019 and submitted Tribunal claims for race and sex discrimination on the same day. In order to bring a Tribunal claim, claimants must complete the 'ET1' claim form which asks for confirmation of ACAS early conciliation details. At the time she submitted her claim, Ms Pryce ticked the box to indicate she had no early conciliation certificate number, and that ACAS did not have power to conciliate the claim. This was incorrect.

After she submitted her claim, Ms Pryce notified ACAS of the dispute and ACAS issued an early conciliation certificate on 27 August 2019. Ms Pryce emailed the Tribunal to provide the early conciliation certificate number that same day.

The Tribunal initially (and in error) allowed Ms Pryce's claims to proceed. However, the claims were subsequently dismissed for lack of jurisdiction because Ms Pryce did not have an early conciliation certificate when she started her claim. Ms Pryce appealed to the Employment Appeal Tribunal (EAT).

What Is ACAS Early Conciliation?

Early conciliation is a mandatory conciliation process facilitated by ACAS. Save in limited circumstances, would-be claimants must go through ACAS early conciliation before bringing a claim. If conciliation is successful, settlement will be achieved and no claim need be brought. If conciliation is unsuccessful, ACAS will issue a certificate containing a unique number. That number must be confirmed on the ET1 form.


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"The Kind of Case That Gives the Law a Bad Name"  

The EAT rejected Ms Pryce's appeal. Section 18A Employment Tribunals Act 1996 requires claimants to contact ACAS before starting their claims. Specifically, it states that a prospective claimant "may not present [a claim] without a certificate". The Act contains no discretionary power to waive this requirement. When Ms Pryce presented her claim without the certificate number, the Tribunal should have rejected it at that stage. Ms Pryce could then have presented her claim again, with the ET1 form completed as required.

The EAT judge expressed sympathy for the position Ms Pryce now finds herself in, almost three years after first submitting her ET1 form. He said the case was "the kind of case that gives the law a bad name". However, he did not have the power to reach an alternative decision. The judge instead suggested Ms Pryce might now promptly issue a new claim and apply for extension of time. This would be a separate application for the Tribunal to consider before the case could then proceed.

An Important Example for Employers Facing Tribunals

This decision provides clarity on the lack of discretion in the Tribunal to apply the rules flexibly where an incomplete ET1 form is submitted. On a human level, there may be a desire to accommodate the claimant where the correct information is submitted in the end, but this decision explains clearly that the Tribunal simply does not have the power to adopt a flexible approach in this way.

When faced with Tribunal proceedings, employers should take the time to check the claimant has submitted their claim in the right way. In Ms Pryce's case, her error was noticed by the Tribunal and not the respondent. Had the responded noticed the error, it might have been possible to have the claim struck out at an earlier stage.

For more information or advice, please contact Nick Murrell in the Public Sector team on 0117 314 5627, or complete the form below.

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