Ahmed v Arearose Ltd

Where a claimant requests a hearing on an application to reconsider rejection of an Employment Tribunal claim, Rule 13(3) requires the application to be considered at a hearing attended by the claimant. An Employment Judge cannot determine it on written representations alone.

Where the procedural and factual issues concerning early conciliation have not been properly examined, the appropriate course is to allow the appeal and remit the reconsideration to a different Employment Judge. The remitted hearing may determine whether an exemption applied, whether the certificate was valid, and whether the omission of an early-conciliation number can be rectified.

The claimant presented an Employment Tribunal claim for unpaid holiday pay and race discrimination or harassment. The ET1 stated that he did not have an ACAS early-conciliation number and asserted that ACAS lacked power to conciliate some or all of the claim.

After presentation, the claimant's solicitors obtained and sent the Tribunal an early-conciliation certificate. The claim was rejected. They applied in writing for reconsideration and, arguably, requested a hearing. Employment Judge Wade rejected that application on the written material, stating that no hearing had been requested.

The claimant appealed to the Employment Appeal Tribunal. The central issue was whether the reconsideration could lawfully have been determined without the hearing required by Rule 13(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

1. Appeal allowed. The reconsideration decision of 17 July 2015 was set aside and the matter was remitted to the Employment Tribunal, before an Employment Judge other than Employment Judge Wade.

2. The claimant's letter of 7 July 2015 was not clearly expressed, but it was arguable that its final paragraph requested a hearing on the Rule 13 reconsideration. The Tribunal was wrong to conclude that no hearing could have been requested. In those circumstances, Rule 13(3) required a hearing attended at least by the claimant before a decision was made. Determination on written representations alone was procedurally unfair and contrary to the Rule.

3. The case was procedurally confused and further facts might require investigation. The Employment Appeal Tribunal made no final determination on the substantive early-conciliation questions. The remitted Tribunal should consider whether the proceedings required an early-conciliation certificate, whether the certificate obtained was valid, and whether supplying the certificate and its reference number after presentation could rectify the defect or instead required fresh proceedings.

4. The hearing on remittal would permit both parties to attend, the relevant facts to be considered, and a full decision to be given. That decision could, if necessary, be subject to a further appeal.

• Employment Appeal Tribunal: allowed the claimant's appeal against the Employment Tribunal's reconsideration rejection of 17 July 2015 and remitted the matter to a different Employment Judge.
• Employment Tribunal: rejected the ET1 and then rejected the claimant's written application for reconsideration without a hearing.