Early conciliation and presenting ET1

The Claimant completed her ET1, incorrectly stating that she was exempt from undertaking the ACAS early conciliation. An employment judge held that she could rectify this by completing the early conciliation procedure and then applying to the Tribunal for it to reconsider its decision to reject her claim. She did this, but the ET1 was then treated as being presented on the date that the defect was rectified. While this was good in that it meant that there was no need for a fresh ET1 to be presented, the question then arose of whether the claim had been presented in time.

The Claimant lodged a claim of being subjected to a detriment for making a protected disclosure whilst still employed. Her solicitors completed the ET1 confirming she did not have the early conciliation certificate as she was exempt and the Tribunal accepted the ET form. The Respondent asserted in its Response that the Tribunal should have rejected the ET1 because early conciliation had not been undertaken. The Claimant’s solicitors then sought a stay of proceedings so that she could retrospectively go through early conciliation, to which the Respondent inevitably objected.

The Tribunal listed a preliminary hearing to consider whether her claim should be rejected because she did not go through early conciliation and whether, if she contacted ACAS retrospectively, the Tribunal could revoke a decision to reject her claim under its powers of reconsideration.

The outcome was that the claim should have been rejected under the ET rules but, applying the reconsideration provisions, when the defect was remedied, the claim would be treated as having been presented at the end of the early conciliation process. The Tribunal’s reason for accepting the claim once early conciliation had been completed was that her claim had not been validly presented and had in fact been rejected, the effect of which is to treat the claim as if it had not been presented at all. Therefore conciliation will start at that point and would still be pre-claim conciliation. The Claimant’s argument that to deny her the ability to rectify a defect in this way would hinder access to justice.

The case raises some interesting points about the interrelationship between the requirement to go through early conciliation as a pre-claim step and the Tribunal rules regarding presentation of claims. It also emphasises the need to ensure that, if a Claimant is claiming they are exempt from early conciliation, this is validly claimed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.