Early Conciliation case
In Blake Morgan's latest case report an employment judge found that an initial failure to follow the ACAS Early Conciliation ("EC") rules was not necessarily fatal to the claim being considered by the Employment Tribunal.
Thomas v Nationwide Building Society ET/1601342/14
Miss Thomas was an employee of the Nationwide Building Society (Nationwide). On 8 August 2014, she filed a claim alleging that Nationwide had subjected her to a detriment for making a protected disclosure (www.practicallaw.com/8-200-3427) (whistleblowing). The claim, which had been completed by Miss Thomas' solicitors, did not contain an EC certificate number and stated that the claim was exempt from EC. The ET1 was accepted by the Cardiff Employment Tribunal.
When it filed its response, Nationwide argued that the ET1 should have been rejected as Miss Thomas had failed to undertake EC. Miss Thomas's solicitors accepted that it was not, in fact, a claim which was exempt from EC. However, they sought an order for the proceedings to be stayed so that Miss Thomas could commence EC retrospectively. Unsurprisingly, Nationwide objected.
Eventually Miss Thomas' solicitors accepted that the Employment Tribunal (ET) had to reject the claim because of the failure to comply with the EC rules, and the ET agreed. The ET was by now aware that Miss Thomas had contacted ACAS to commence EC. The question therefore remained whether, if Miss Thomas contacted ACAS retrospectively, the ET could use its powers of reconsideration to override its own decision to reject the claim.
The judge ruled that he could apply his powers under the reconsideration provisions of the ET rules to treat the claim as having been presented at the end of EC, even though it had only taken place after the original claim was filed. By completing the EC process and receiving an EC certificate, Miss Thomas had rectified the defect in the ET1. The judge therefore allowed her claim to proceed.
Nationwide asserted that if a claimant was allowed to correct a defect after a claim had been filed at the ET then it would cease to be "early" conciliation and it would also fundamentally undermine the EC procedure. However the judge ruled that with the claim rejected, it was as if it no claim had been made. Any conciliation now would still be 'pre-claim' conciliation. The judge accepted that to deny Miss Thomas the opportunity to correct her error in this way would impede access to justice.
The judge also rejected Nationwide's submission that Miss Thomas would need to present a fresh ET1. He held that effect of the rules on reconsideration was to treat the original claim as presented on the date that the defect was rectified. Here it was rectified when the EC certificate was issued, with the required EC number, on 7 October 2014. This was the date on which the ET1 was to be treated as having been presented. It also meant Miss Thomas did not need to pay a second issue fee.
The judge did note that his decision gave rise to further issues as to whether the claim was now out of time, and allowed Nationwide to amend their response to address this issue.
Implications for Employers
Whilst not a binding decision, it appears to be one of the first to consider EC since its introduction. The judge did nothing more than exercise the powers afforded to him under the ET rules, but the main implication is that even if an employer successfully challenges the validity of a defective claim, this is not the end of the story. If there is sufficient time before the time limit expires, a claimant can take action to rectify the defect, even if this seems to undermine the purpose of "early conciliation".
Nationwide's solicitor argued that allowing this defect to be rectified would "drive a coach and horses through the new procedure". It does seem questionable, given that there is no compulsion on the claimant to actively engage in EC, to allow a claimant multiple attempts to correctly file a claim - especially in circumstances where the requirements for a valid claim are clearly stated and the claimant has been in receipt of professional legal advice. Those who remember the statutory disciplinary and grievance procedures in place until 2009 may well see echoes of similar satellite litigation where ETs strove to allow claims which had failed on a technicality. Unfortunately this often only adds to an employer's legal costs.
This article was originally published in Personnel Today.