Cranwell v Cullen

A tribunal must reject a claim instituting relevant proceedings where the prescribed early-conciliation information is absent or where the claim wrongly confirms that an early-conciliation exemption applies. Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Rule 6 does not confer a discretion to waive that statutory and mandatory requirement. Rule 6 concerns a litigant’s non-compliance; it cannot relieve a tribunal from an absolute duty imposed on it by the Rules or create an unprescribed exemption under section 18A of the Employment Tribunals Act 1996.

The claimant sought to bring claims arising from alleged sexual harassment, discriminatory treatment and assault by her former employer. The facts had not been heard.

Her claim form confirmed that an early-conciliation exemption applied, but no exemption did apply. Employment Judge Gall rejected the claim shortly before 4 June 2014 under Rules 12(1)(d) and 12(2). On a renewed Rule 3(10) application, the claimant contended that Rule 6 permitted the Tribunal to waive or vary the early-conciliation requirement because of her particular circumstances and the overriding objective.

The central issue was whether Rule 6 gave a discretion to avoid the mandatory rejection required by the early-conciliation provisions.

1. The renewed Rule 3(10) application was dismissed. Employment Judge Gall had rightly rejected the claim. There was no arguable error of law.

2. Section 18A(1) of the Employment Tribunals Act 1996 required a prospective claimant to give ACAS prescribed information before instituting relevant proceedings, subject only to prescribed cases under section 18A(7). The applicable Regulations provided five exemptions, none of which applied.

3. The claimant’s confirmation that an exemption applied brought the claim within Rule 12(1)(d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Rule 12(2) consequently required its rejection. The result was materially the same as rejection under Rule 10.

4. Rule 6 did not qualify that duty. First, an exemption from the statutory regime had to be prescribed, whereas Rule 6 did not supply the required focused and prescribed exemption. Secondly, Rule 6 was designed to relieve parties from consequences of their own procedural non-compliance; it could not permit the Tribunal to disregard its own absolute obligation. Thirdly, the Tribunal had complied with its duty, so there was no non-compliance that could trigger Rule 6.

5. The claimant could still approach ACAS and explain why conciliation was pointless. If ACAS issued the necessary certificate or number, she could present a claim and seek an extension or other relief concerning time limits. That prospect did not affect the validity of the rejection.

• Employment Appeal Tribunal: renewed Rule 3(10) application dismissed; the rejection of the claimant’s claim by Employment Judge Gall was upheld.
• Employment Tribunal: the claim was rejected shortly before 4 June 2014 under Rules 12(1)(d) and 12(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.