Sterling v United Learning Trust

An Employment Tribunal must reject a claim form which does not contain an accurate early-conciliation number required by Rule 10. A permissible factual inference that the number was incomplete will not be disturbed on appeal merely because later material might suggest a different conclusion.

For a statutory extension where timely presentation was not reasonably practicable, the claimant bears the burden. Where the claimant neither advances that case before the Tribunal nor establishes that a defective form was not their responsibility, the Tribunal may find that timely presentation was reasonably practicable.

The Claimant presented an ET1, fee and remission application four days before the limitation period expired. The Tribunal Service returned the material because the ET1 was found not to contain a valid ACAS early-conciliation number. Its rejection letter was incorrectly addressed and reached the Claimant only after the deadline. She re-presented the form at the first opportunity on 7 July 2014.

Employment Judge Emerton held that the unfair-dismissal, automatic-unfair-dismissal and notice-pay claims were out of time, although time was extended for the disability-discrimination claim. The Claimant appealed, contending that the Employment Judge could not infer that the original ET1 contained an incomplete conciliation number and should have found that timely presentation was not reasonably practicable.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the relevant claims had been presented out of time.

2. The Employment Judge was entitled to infer from the Claimant’s oral evidence that the original ET1 omitted two digits from the early-conciliation number. The original and replacement forms were unavailable for comparison, but the evidence recorded uncertainty about which document required correction and supported the inference that the returned ET1 was defective.

3. Under Rule 10(1)(c)(i) of the 2013 Rules of Procedure, a required early-conciliation number must be accurate. Once the Tribunal found that the number was incomplete, rejection was mandatory. That rejection stood unless reconsidered. No application for reconsideration was made, so the Employment Judge was entitled to proceed on that basis.

4. The Claimant bore the burden of showing that timely presentation was not reasonably practicable. The point was not pursued before the Employment Judge. That alone entitled the Judge to find that the burden had not been discharged. In any event, the Judge also permissibly found that the late presentation resulted from the Claimant’s own failure to ensure that the required number was correctly entered. The misaddressed rejection letter did not alter that conclusion.

5. The President observed that rejection for a simple inadvertent error could have a severe effect. Reconsideration of rejection, and possibly Rule 6, might provide an answer in an appropriate case, but neither issue was argued and neither was determined.

• Employment Appeal Tribunal: appeal dismissed; the Employment Judge’s jurisdictional decision was upheld.
• Employment Tribunal, London (South): on 5 November 2014, held the unfair-dismissal, automatic-unfair-dismissal and notice-pay claims out of time, while extending time for the disability-discrimination claim.