Two recent Employment Appeal Tribunal decisions have been handed down concerning the failure to comply with ACAS early conciliation or correctly fill out the ET1 form. I suspect there will be more decisions of this nature from the EAT due to the prescriptive nature of the rules.
In the first case, the Claimant submitted her ET1 a few days before limitation but missed some digits out of the EC number on the ET1 form. The Tribunal rejected the claim and sent it back to the Claimant but to the wrong address. When the Claimant received it some days later it was immediately resubmitted with the correct number but the Claimant was now out of time. The Employee appealed to the EAT but the EAT said that the Tribunal was obliged to reject the claim if the EC number was missing but that the Claimant could have applied for a reconsideration of the rejection but had failed to do so. Her representative also failed to argue that it was not reasonably practicable to present the claim on time but the EAT rejected this argument as the burden was on the Claimant to prove that it was not reasonably practicable and she had failed to argue this originally. Further she had a duty to ensure that the EC number was correct.
The second case is a very sad story where the Claimant alleged that she had been sexually harassed and physically abused at work. She failed to comply with ACAS EC as she mistakenly believed that she would have to discuss the case with her alleged harasser. The Tribunal rejected the claim as she had not complied with ACAS Early conciliation. The EAT held that the Tribunal was right to reject the claim as whilst her reluctance was understandable she did not fall within any of the exemptions. The need to comply with ACAS EC was mandatory and the Tribunal had no discretion it could exercise in this case. It was particularly sad as if true the Claimant had been treated appallingly and if she had commenced ACAS EC and explained her reluctance to the ACAS EC officer it was highly likely that the officer would have seen settlement as unlikely and simply issued the certificate.
Whilst these are two EAT decisions as these now start to filter through, we have heard of other first instance decisions in the Tribunal where preliminary hearings have been held to determine whether or not ACAS EC has been complied with, whether the statutory exemptions apply or whether the certificate is against the right Respondent.
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Written by
Edward Aston
3rd June