The first reported rejection of a claim

On the 6^th May 2014 new early conciliation procedures were introduced requiring an employee to submit details of their claim to ACAS and obtain a certificate before being able to proceed with their claim in the Employment Tribunal.

The aim of the procedure is to try to prevent claims reaching the Employment Tribunal with the hope that the parties will consider settlement at an early stage. For more information about early conciliation click here.

It has taken five months but there has now been the first reported case of a claim being rejected by the Employment Tribunal because of an employee’s failure.

The Law

The relevant law in this case is set out in the Employment Tribunal Rules of Procedure 2013 which govern how claims are dealt with and the relevant procedures.

In the case of early conciliation the applicable rule is Rule 10(1)(c) which states that a claim form will be rejected unless it includes one of the following:

• The number from the early conciliation certificate issued by ACAS; or
• Confirmation that the claim does not include any relevant proceedings; or
• Confirmation that one of the early conciliation exemptions applies.

Relevant proceedings are those that are relevant for the purposes of early conciliation.

The Facts

Miss Thomas is an employee of Nationwide Building Society (‘Nationwide’) and on the 8^th August 2014 she made a claim against her employer as a result of alleged detrimental treatment she had suffered for making a protected disclosure (also known as ‘Whistleblowing’).

On her claim form (known as an ET1) Miss Thomas stated that she had not completed the early conciliation process and that her claim was exempt from doing so.

Nationwide noted the error in Miss Thomas’ form and applied to the Employment Tribunal to have her claim rejected. In  the meantime Miss Thomas contacted ACAS, submitted her early conciliation application, and obtained a certificate of compliance.

Nationwide argued that the fact that Miss Thomas had completed the procedure after the event was irrelevant and her claim should be rejected. Miss Thomas argued that she had rectified the defect in the procedure and her claim should continue.

The Decision

 A hearing to decide these issues went ahead and the Employment Tribunal Judge decided that under Rule 12 of the Employment Tribunal Rules the claim should have been rejected when received, however applying Rule 13 of the same Employment Tribunal Rules he decided that as the defect had been rectified the claim form would be treated as having been presented at the time the Early Conciliation procedure concluded, which was the 7^th October 2014.

 The reason for the Employment Judge’s decision was that if Miss Thomas had not been allowed the opportunity to rectify the error in procedure it would have impeded her access to justice.

Points to note

The date at which Miss Thomas claim was ‘accepted’ by the Employment Tribunal is important in this case, as there are implications for some elements of her claim being outside of the time limit for making a claim.

Following the hearing the Judge ordered that a further preliminary hearing may be required to deal with Nationwide’s arguments that some aspects of Miss Thomas claim are time-barred.

Employment Tribunal claims (ET1 forms) are received by the Employment Tribunal and processed by administrative staff, and therefore it would appear that they are not picking up on procedural and jurisdictional issues. Therefore as an employer on the receiving end of a claim you should ensure that you are examining the form carefully, checking particularly the legal basis of claim, time limits and jurisdictional issues. If there is an issue and you believe that the claim should not have been accepted in the first place you should raise this without delay with the Employment Tribunal.

Case name: Thomas v Nationwide Building Society