2014, prospective claimants have (on the most part) had to participate in Acas’
early conciliation (‘EC’) before they can issue a claim in an employment
tribunal. The idea behind the scheme is to promote settlement between the parties before they become entrenched in the tribunal process. To avoid a claim
being rejected by the tribunal, the claimant must show that the EC process has
been completed, or confirm that an exemption applies.
A recent tribunal
decision illustrates the impact of a claimant failing to use the Acas EC scheme
(Thomas v Nationwide Building Society ET/1601342/14). In
this case, the claimant incorrectly stated in her claim form that she did not
require an EC certificate, asserting the claim was exempt from the Acas EC
scheme. The claimant’s reliance on an exemption was processed unquestioned by
the tribunal, and consequently issued to her employer.
On review of
the claim, her employer noticed that no EC certificate had been obtained
. In its defence, the employer contested the claim and asserted that the
claim should have been rejected because the claimant had failed to
undertake EC, and no exemption applied. On reflection, the claimant
accepted that she should have obtained an EC certificate before issuing her
claim. At this point, she contacted Acas and obtained an EC certificate.
She subsequently applied to the tribunal for her claim to be reconsidered, as
she now had an EC certificate.
agreed that the claim should initially have been rejected as a result of the claimant’s failure
to comply with the EC process. Applying the Employment Tribunal rules,
the judge found that because the defect had subsequently been remedied by the
claimant (i.e an EC certificate had been retrospectively obtained), her claim
should be accepted as at the date the EC process completed (and not when her
claim was originally submitted pre EC). The judge accepted the claimant’s
argument that to deny the claimant the ability to rectify a defect in this way
would impede her access to justice.
will now have the right to present an amended response to the claim which is
likely to deal with whether the claim should be barred as out of time. The
judge will then have to consider whether it would be just and equitable to
extend the limitation period and allow the claim to progress.
must ensure that they give due consideration to EC before presenting a claim,
to avoid a situation where the claim is rejected, or later barred as being out
review claims carefully to ensure that the EC process has been properly
completed / check that the employee is relying on a legitimate exemption
from the process. It appears this is not something which the tribunal
will pick up on / question of its own volition.