Thomas v Nationwide Building Society
An employment judge has rejected a claim for failure to comply with the ACAS early conciliation procedure. However, he went on to find that the rejection could be reconsidered on the basis that the Claimant had belatedly complied with the procedure. The case is the first reported instance of a claim being rejected under the early conciliation rules, which were brought fully into force in May 2014.
The Claimant presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation, by which any would-be claimant must first contact ACAS with details of the claim, and receive a certificate confirming completion of the procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim. The Claimant indicated on her claim form that she did not have the relevant certificate but that she was exempt from early conciliation. This was not correct and, after the Respondent raised the question of the tribunal’s jurisdiction to hear the claim, the Claimant conceded that her claim ought to be rejected. However, she argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered.
The Employment Judge confirmed that the parties were right to agree that the Claimant’s claim was jurisdictionally barred. The claim did not fall within one of the exemptions and so the absence of a certificate meant that its rejection was mandatory. However, he went on to rule that non-compliance with the procedure was a ‘defect’ capable of being rectified so as to allow for reconsideration. He rejected the Respondent’s argument that to allow for belated compliance with the procedure would drive a ‘coach and horses’ through the rules, since the conciliation would no longer be ‘early’. In the Judge’s view, even belated compliance with the conciliation procedure would still be ‘pre-claim’, given that the original claim had been rejected. He also rejected the suggestion that the Claimant would have to present a fresh claim form once she had completed the early conciliation procedure. The Claimant had, in the meantime, gone through the procedure and now had a certificate confirming its completion on 7 October. Her claim would accordingly be treated as having been presented on that date. The claim will now go forward for a further hearing to consider the extent to which the claim may be out of time, having regard to the later date of presentation.
Employment Partner Kate Fretten says, “It is likely that the Claimant will still fail with her claim due to being outside the time limit of 3 months to present it. However, the case is important in that it confirms Claimant’s can have a ‘second bite of the cherry’ in complying with the early conciliation procedure.” Whether it is possible practically, given that, by the time the jurisdictional point has been raised at the tribunal it is likely the 3 month time limit has been exceeded, is another matter.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.