Wednesday, 13 May 2015

Short shrift afforded to claimant who failed to fully enter the ACAS conciliation number

Short shrift was afforded to a claimant who failed to fully enter the ACAS conciliation number on her ET1 in Sterling v United Learning Trust


The Claimant submitted a claim form, fee, and application for remission to an Employment Tribunal office four days before time expired.  It was returned to her as rejected, mis-addressed by omission of her house number, at a time when it could not be re-submitted without being out of time, though the Claimant submitted it at the first opportunity.  The Judge inferred from her evidence and the material before him that she had not fully entered the ACAS conciliation number she had been given on her application form, and that the Employment Tribunal had been obliged by Rule 10(1)(c)(i) of the Employment Tribunal Rules to reject it.  No argument was made that it had not been reasonably practicable to submit the claim on time.  An appeal on grounds that the Employment Judge should not have drawn the inference he did, and that he had failed to hold it not reasonably practicable to submit the claim in time, was rejected - the former was a permissible conclusion, the second had not been argued before him but in any event he also dealt with the question and concluded that the reason for being out of time was the failure of the Claimant to record the ACAS number fully and correctly, a conclusion he was entitled to reach.

Perhaps the crucial paragraphs can be found here:

22.          Once it is accepted that the Tribunal was entitled to think that the form did have a couple of digits missing, the question is whether the Tribunal was then obliged to reject the form.  The wording of Rule 10 was not significantly in issue before me.  Where the rule requires an early conciliation number to be set out, it is implicit that that number is an accurate number.  The Tribunal had found it was not.  Once that appeared to be the case, the Tribunal was obliged to reject it, and that rejection would stand, subject only to reconsideration, which here was not asked for.  Although that might have been the failure of Mr McKenzie and not the Claimant herself, the Tribunal Judge had Mr McKenzie before him as her representative and was entitled, therefore, to think that there was no application for reconsideration. 

23.          As to the second ground, the difficulty here too is the lack of argument to the effect that it had not been reasonably practicable for the Claimant to present the claim earlier than she did.  Where an argument is not pursued before a Tribunal, a Judge is entitled to conclude that, since the burden is on the Claimant to show that it was not reasonably practicable, she has failed to discharge that burden.  That decision was in accordance with the law.

1 comment:

Edward Learman said...

I was dismissed after notifying my employer of about my symptoms of depression and a disability under the equal rights act, and the dismissed following a request to submit a flexible working application.