They have resulted from the decision taken by senior judges, particularly the resultingly unpopular Lord Jackson, to clamp down on failure to comply with directions. As with most things in life, rigid adherence to rules without any flexibility or discretion is unlikely to result in uniform fairness, particularly when the rules themselves are far from perfect.
I have already made clear my views about the compulsory ACAS early conciliation procedure introduced earlier this year. We now have the first reported case of a claim being struck out as a result of failure to comply with the procedure, albeit with a rather more sensible and equitable outcome than has been seen in many cases in the civil courts.
Miss Thomas wished to proceed with a whistleblowing claim against her employer, Nationwide Building Society. Her ET1 claim form was presented by her solicitors to the employment tribunal on 8 August 2014. The disclosure, made on 28 March 2014, was that her colleagues had cheated in an assessment required under new mortgage rules with the assistance of one of Nationwide’s managers. The claim was accepted.
In its ET3 (response) Nationwide, as well as defending the claim on the merits, contended that the claim was out of time and that the claim should in any event have been rejected as a result of failure to use the ACAS early conciliation procedure.
Miss Thomas’ solicitors accepted that their client should have used the early conciliation procedure but sought a stay to allow (now not so early) conciliation, effectively to remedy the breach. Subsequently they accepted that the claim had to be rejected as defective. However they contacted ACAS and obtained an early conciliation reference number. When submitting the ET1 her solicitors should have confirmed that the procedure had been followed. Instead they ticked a box declaring that the procedure did not apply because ACAS was not empowered to conciliate on all or part of her claim. That was clearly wrong.
Accordingly Employment Judge Clarke, sitting in Cardiff, confirmed that the claim was rejected on the basis that the ET1 did not comply with the Rules of Procedure.
However Judge Clarke then went on immediately to consider whether the order he had just made rejecting the claim should be revoked. Miss Thomas’ solicitors claimed that since ACAS had been contacted and a reference number obtained the defect had been rectified. On the other hand Nationwide’s solicitor said that post-claim conciliation cannot be early conciliation and if the claim was allowed to proceed then this would drive a coach and horses through the new procedure.
Judge Clarke took the view that if the rejection was revoked then that would cure the “early” conciliation point because it would still be pre-claim. Once the defect was rectified the claim would be treated as being presented on the date of rectification. There would therefore be no need for a fresh claim form since it would, in effect, simply be re-dated.
Incidentally, in another strange twist, it emerged only in the course of the hearing that early conciliation had failed. In submissions it was contended that it had commenced. However a certificate was belatedly produced stating that the conciliation had commenced on 3 October 2014 and completed on 7 October 2014. The date of presentation of the ET1 was therefore amended to 7 October.
However, that is not the end of the story for Miss Thomas. The tribunal will now have to decide, taking into account the altered date of the ET1, whether or not the complaint was presented in time, the last pleaded detriment having been claimed to have taken place on 21 July 2014.
You will have to make up your own mind concerning whether or not the Judge was right and whether or not the Rules are a help or a hindrance to the fair and equitable administration of justice. Clearly there is a need for rules and it is more than likely that Miss Thomas was unaware of her need to utilise the early conciliation procedure although her solicitors should have been. Perhaps she should therefore seek redress from her solicitors but that then raises the prospect of further proceedings.
In any event the judgment of Judge Clarke was in the Employment Tribunal and is therefore not binding on other tribunals. We will have to wait until a case on the point makes its way to the Employment Appeal Tribunal for guidance. However if the EAT follows the civil courts that will only mark the beginning of a rash of inconsistent decisions and general confusion. You can’t help thinking that it would be better to think through the consequences of introducing new rules before they come into force.