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What happens when an Early Conciliation certificate is late?

View profile for Chris Dobbs
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What happens when an Early Conciliation certificate is late?

We all know that Acas must be notified of every potential claim to the Tribunal. But what happens if an early conciliation certificate is submitted late? In this article, Employment Solicitor Chris Dobbs discusses…

What benefits does Early Conciliation have?

While engaging in Early Conciliation is not mandatory, it has two significant benefits for would-be claimants.

  1. The dispute may be resolved without the need to engage in litigation and, separately,
  2. The six-week Early Conciliation period can be a useful time to consolidate and prepare a claim.

When issuing a claim, whether online or in paper format, the Claim Form (ET1) asks for the Acas Early Conciliation number.  The form even states that “Nearly everyone should have this number before they fill in a claim form.”

So what happens if a claimant submits their ET1 and later tries to submit an Acas Early Conciliation certificate?

This is exactly what happened in Pryce v Baxterstorey Ltd.

Case background: Pryce v Baxterstorey Ltd

Ms Pryce submitted a claim form without obtaining an EC number and then tried to later send an EC certificate to the Tribunal.

She argued that this was a procedural defect and that she had complied with the requirement to have an EC certificate. Her claim was dismissed for lack of jurisdiction.

What did the EAT rule?

Ms Pryce then appealed to the EAT who upheld the decision to dismiss the claim. The EAT ruled that there is a strict statutory requirement that a claim submitted to the Tribunal must have the EC number and that, without it, the claim is basically a “nullity”.

There was no scope in the Tribunal Rules for the email containing the EC Certificate to be considered a representation of the claim because, in law, it had not been presented in the first place.

A specialist Employment Solicitor’s view

Employment Solicitor Chris Dobbs says: “As HHJ Shanks said in the appeal judgment, this is the kind of case which arguably gives the law a bad name. It feels inherently unjust to disallow the claim to have proceeded on what appears a technicality but the Tribunal, like all courts, is bound to follow the statutory position.”

What can employers learn from this?

Chris continues: “There are two things which should always be immediately reviewed on receipt of a Tribunal claim form and they both relate to jurisdiction.

The first is that the Acas reference cited on the form is there and that it matches the actual certificate number issued by Acas.

The second is whether the claims are all presented in time allowing for any period of Early Conciliation.

While it may seem unfair on the claimant, claims being struck out on time alone make responding to them much easier for employers”.

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