The decision in Thomas v Nationwide Building Society  provides an interesting insight into how the Employment Tribunal is applying the early conciliation requirement in practice, particularly focusing on the interplay between rules 12 and 13 of the Employment Tribunal Rules of Procedure.
ACAS Early Conciliation Procedure
Since 6 May 2014, early conciliation via ACAS has been mandatory for the majority of potential claimants who are contemplating tribunal proceedings. Under section 18A of the Employment Tribunals Act 1996 (as amended), the requirement to conciliate applies to all ‘relevant proceedings,’ the particulars of which are specified in section 18 of the act. A whole raft of employment-related disputes are covered including – as in the present case – claims under section 47B of the Employment Rights Act 1996, relating to protected disclosures.
Rejection of the claim in Thomas
The claimant filed her ET1 on 8 August 2014, stating that she did not have an early conciliation number and mistakenly claiming reliance on one of the exemptions in regulation 3 of the Early Conciliation Regulations 2014. During the course of proceedings, it was accepted that this assertion was incorrect and that none of the exemptions were applicable.
Rule 12 of the Tribunal Rules of Procedure provides that a claim will be referred to an Employment Judge if one of a number of circumstances arises for consideration that the claim be rejected. Here, rule 12(1)(d) caused difficulty for the claimant, providing that a claim should be referred if it was:
“One which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply.”
It is important to note that if the breach has occurred, the judge has no discretion and must reject the claim. Rule 12(2) provides that “the claim, or part of it, shall [our emphasis] be rejected if the Judge considers that the claim, or part of it, is of a kind described.”
Accordingly, it was accepted by both parties that the claim must be rejected. Argument arose, however, as a result of the claimant’s application for reconsideration under Rule 13.
Reconsidering the claim
Rule 13(1)(b) provides that rejection of a claim may be reconsidered if the defect that caused the rejection is one which can be rectified. The claimant asserted that the failure to engage in early conciliation could be rectified and, in fact, was rectified by the time of the hearing. Unsurprisingly, the respondent took issue with this position and argued that to allow subsequent rectification would be akin to “driving a coach and horses” through the early conciliation procedure.
Employment Tribunal decision
Employment Judge Clarke dealt deftly with the respondent’s argument, coming down in favour of the claimant. In considering whether such an allowance would undermine the mandatory early conciliation procedure, focus was aimed on the precise effect of the initial rejection. The Employment Tribunal concluded that the effect of rejection was to treat the claim as having never been brought, leaving the way open for ‘pre-claim conciliation’.
The claimant was permitted to rely on the Rule 13 allowance, the effect of which was clearly set out in 13(4), that the claim “shall be treated as presented on the date that the defect was rectified.” This is an interesting point and one with particular ramifications.
The application hearing was some two months after the initial presentation of the ET1 form. The effect of Rule 13 was to treat the claim as being brought on the date of the application hearing. While guidance was sought, the tribunal refused to comment on the claimant’s position in respect of limitation. This will no doubt be a key battle for a later date.
ACAS Early Conciliation – points to note
This decision, while not binding on any future tribunal as it was an Employment Tribunal judgment – rather than, for instance, Employment Appeal Tribunal – does give a helpful indication of how failures to commence early conciliation are being dealt with in practice. Claimants should be minded that while the Rule 13 power may provide some relief if conciliation is not commenced pre-proceedings, they must be very careful as to the effect that this may have on limitation. It will be of little comfort to a claimant to be allowed to proceed at the initial stages, only to be struck out further along the line as a result of missing the key limitation window.
Respondents equally should be aware that a failure to commence early conciliation will not automatically bar a claimant from proceeding, even if it may cause them some difficulty at a later stage. Perhaps the key here is to adopt a reasonable approach to any early requests for post-commencement conciliation but to reserve arguments regarding limitation for those that offend the relevant timescale.
For advice on any aspect of the above article or for any other employment law matter, please contact Lyons Davidson’s employment law team.