As you will probably be aware early conciliation is the requirement, introduced by the Enterprise and Regulatory Reform Act (ERRA) that all prospective claimants must contact ACAS before they can present claim to the Employment Tribunal. Prospective claimants are provided with an EC certificate with a unique reference number at the conclusion of the Early Conciliation process which must be entered on the Employment Tribunal claim form when a claim is submitted.
This gives both employers and employees the opportunity to negotiate, narrow the issues or even settle claims without the need to incur extensive legal costs.
However, due to the strict time restraints imposed by the tribunal, it is vital that the details inputted onto the early conciliation certificate are correct. Early conciliation does stop the clock from running with regards to your time limitation to bring a claim in the tribunal although if a mistake is identified you cannot go back. Therefore if an error in the identification of the respondent is identified following the expiry of the primary limitation period there can be the real risk that the claim against the correct respondent would be out of time.
This has quite clearly in the past caused Claimants and their legal advisors a great deal of difficulty and whether the claim could proceed was and still is essentially a matter of judicial discretion.
However, in Mist v Community NHS Trust the Employment Appeal Tribunal provided helpful guidance on whether an error in the identification of a respondent in an early conciliation certificate could prevent the employment tribunal from accepting a claim.
The first respondent was named correctly in the Claimant’s ET1 although the claimant had failed to name the second Respondent in both the ET1 and the EC certificate. The second respondent was joined at a later date although this was challenged on the basis that they had been joined out of time.
At first instance the Employment Tribunal agreed and ruled that the claim against the second respondent had been brought out of time. The Claimant appealed, broadly on the basis that the Tribunal had given undue prominence to the limitation period at the expense of the Claimant’s right to a remedy and had failed properly to assess the balance of hardship. The second respondent cross-appealed, alleging that the Tribunal had no jurisdiction to hear the case against the second respondent in circumstances where the Claimant had not first obtained a relevant ACAS conciliation certificate.
The EAT allowed the appeal although held that neither expiry of a limitation period, nor failure to explain delay, should be determinative. Instead, the paramount consideration should be the relative injustice and hardship of each party inherent in adding, or refusing to add, a claim out of time. HHJ Eady QC rejected the Second respondent’s submissions and found;
- Section18 Employment Tribunals Act 1996 required a Claimant to provide prescribed information to ACAS. This includes the prospective respondent’s name but not its full title. If relevant information is missing from the EC certificate then ACAS can reject the request and ask the claimant for further information. In this case they did not. Therefore the EC certificate was valid and it was held the claimant had complied with their obligations under S.18.
- Rule 12(2A) of the Employment Tribunals Rules 2013 provides that an Employment Judge can use their discretion where there is a difference between the respondents details in an ET1 and the EC certificate.
- The application to join the second respondent was viewed as an application to amend an existing claim and did not require further EC notification.
You will note that the above is not determinative and will often turn of the facts in each case, but certainly, it is a point that may muddy the waters, if it can be shown that the details on an EC certificate are wrong. In determining similar matters it seems to me that the Employment Tribunal are trying to balance the potential failure to comply with EC provisions against the detriment to the employee. However, if the above decision is anything to go by it seems that the EAT are increasingly reluctant to prevent a claimant from presenting their claim and so in such matters it would probably be useful to seek a commercial settlement rather than to rely on the assumption that a claim is out of time.