Early conciliation: employee’s failure to comply did not prevent claim going ahead
First published in Personnel Today
In a case report from Blake Morgan, an employment tribunal found that an initial failure to follow the Acas early conciliation 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. On 8 August 2014, she filed a claim (ET1) alleging that Nationwide had subjected her to a detriment for making a protected disclosure (whistleblowing).
The claim, which had been completed by Miss Thomas’ solicitors, did not contain an early conciliation certificate number and stated that the claim was exempt from early conciliation. 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 early conciliation. Miss Thomas’s solicitors accepted that it was not, in fact, a claim which was exempt from early conciliation. However, they sought an order for the proceedings to be stayed so that Miss Thomas could commence early conciliation retrospectively. Unsurprisingly, Nationwide objected.
Eventually Miss Thomas’ solicitors accepted that the employment tribunal had to reject the claim because of the failure to comply with the early conciliation rules, and the tribunal agreed. The tribunal was by now aware that Miss Thomas had contacted Acas to commence early conciliation. The question therefore remained whether or not, if Miss Thomas contacted Acas retrospectively, the employment tribunal could use its powers of reconsideration to override its own decision to reject the claim.
The tribunal ruled that it could apply its powers under the reconsideration provisions of the employment tribunal rules to treat the claim as having been presented at the end of early conciliation, even though it had only taken place after the original claim was filed. By completing the early conciliation process and receiving an early conciliation certificate, Miss Thomas had rectified the defect in the ET1. The tribunal 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 employment tribunal then it would cease to be “early” conciliation and it would also fundamentally undermine the early conciliation procedure. However, the tribunal 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 tribunal accepted that to deny Miss Thomas the opportunity to correct her error in this way would impede access to justice.
The tribunal also rejected Nationwide’s submission that Miss Thomas would need to present a fresh ET1. It held that the 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 early conciliation certificate was issued, with the required early conciliation 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 tribunal did note that the decision gave rise to further issues as to whether or not the claim was now out of time, and allowed Nationwide to amend its response to address this issue.
Implications for employers
While not a binding decision, it appears to be one of the first to consider early conciliation since its introduction. The tribunal did nothing more than exercise the powers afforded to it under the employment tribunal 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 early conciliation, 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 that were in place until 2009 may well see echoes of similar satellite litigation where tribunals strove to allow claims that had failed on a technicality. Unfortunately, this often only adds to an employer’s legal costs.