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Early Conciliation Certificates and the need for accuracy

Employment practitioners already know that, for tribunal claims started after May 2014, claimants must embark on the ACAS early conciliation process and, before lodging their claim, they must also obtain a certificate number from ACAS.

Putting to one side the previous coalition government’s further complication of the Tribunal process (it’s meant to be easily accessible to litigants without legal representation), no doubt the early conciliation process is intended to ensure that parties engage at an early stage, perhaps to avoid the high issue fees introduced in July 2013. Once ACAS has been contacted the time limit to issue a claim is paused for up to one month, with time running again from the date of the certificate (a further two week pause is also possible).

In what appears to be the first case to consider the need for a certificate and the amended Rule 10 of the Employment Tribunal Rules (i.e. this provides that, among other things, the tribunal must reject an ET1 without a certificate number), the EAT in Sterling v United Learning Trust UKEAT/2015/0439 had to decide whether or not the Tribunal was right to reject an ET1 which had an incomplete certificate number, rather than no number at all. The original Tribunal decided that the wording of Rule 10 meant that, if the certificate number was incorrect, the mandatory requirement had not been complied with and the Tribunal had no jurisdiction to hear the case. The EAT agreed, saying: “Where the rule requires an early conciliation number …, it is implicit that that number is an accurate number. The Tribunal had found it was not. Once that appeared to be the case, the Tribunal was obliged to reject it … .”

However, this is not quite the end of the matter. The need for accuracy may not be an issue if the claimant has time to lodge a fresh ET1 before the relevant time limit expires. When the claimant is forced to issue the fresh claim out of time, the EAT thought (albeit this part of their decision was obiter) that an argument that it was not reasonably practicable would be difficult because the claimant had lodged her original claim in time. The EAT also highlighted Rules 10 (2) and 13 which allow for reconsideration of a rejected claim; this point was not taken in Sterling although it is difficult to see how it would have helped. The moral of this case is either, make sure that the ET1 is accurate or issue early so that you have time to try again if things don’t work out the first time.

Adam Swirsky / 1st Jun 2015


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