In Thomas v Nationwide Building Society (Cardiff Employment Tribunal Case No. 1601342/2014) an employment judge has rejected a claim for failure to comply with the early conciliation procedure. One of the first reported cases!
T presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation (EC) procedure established by Ss.18A-18C of the Employment Tribunals Act 1996, by which any would-be claimant must first contact Acas with details of the claim, and receive a certificate confirming completion of the EC procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim.
The Claimant argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered under rule 13(4) of the Employment Tribunal Rules of Procedure 2013, which allows for a rejected claim to be accepted if the rejection was based on a defect that has since been rectified.
Employment Judge Clarke ruled that non-compliance with the EC procedure was a ‘defect’ capable of being rectified so as to allow for reconsideration under rule 13. In the judge’s view, even late compliance with the conciliation procedure would still be ‘pre-claim’, given that the original claim had been rejected. The effect of rule 13 is that the claim can proceed once the defect has been rectified, albeit that it will be treated as having been presented on the date of such rectification. He also rejected the suggestion that T would have to present a fresh ET1 once she had completed the EC procedure.
It must be noted that this was heard only in the ET and therefore we wait to see if it will go upstairs.
Cardiff Employment Tribunal
Charles Price Barrister