Romero v Nottingham City Council

For proceedings relating to the same matter, the early-conciliation scheme requires only one mandatory process and one certificate. A later voluntary early-conciliation process may assist settlement, but its certificate does not alter the limitation period under Employment Rights Act 1996, section 207B.

The term matter is broad but must relate to the intended proceedings. Whether two certificates concern the same matter is assessed objectively by reference to the facts raised with ACAS, rather than the claimant’s subjective understanding of ACAS’s role.

An Employment Appeal Tribunal should follow an earlier EAT decision unless an established exceptional basis for departure is made out. Re-advancing arguments rejected under the same statutory provisions does not show that the earlier decision was per incuriam or manifestly wrong.

The claimant was summarily dismissed and brought claims for unfair and wrongful dismissal. He contacted ACAS twice. The first early-conciliation certificate extended the ordinary unfair-dismissal limitation period; the second was obtained after a further conciliation process. Relying on the second certificate, the claimant lodged his claim after the period calculated from the first certificate.

The Employment Tribunal held that both certificates concerned the same matter, that the second certificate did not extend time, and that it had been reasonably practicable to present the unfair-dismissal complaint in time. It struck out that complaint for want of jurisdiction. The claimant appealed, contending that multiple certificates could affect limitation and, alternatively, that the two processes concerned different matters.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claim was out of time and that it had no jurisdiction to hear the unfair-dismissal complaint.

2. The EAT followed HMRC v Serra Garau [2017] ICR 1121. Section 18A of the Employment Tribunals Act 1996 creates one mandatory early-conciliation process before proceedings relating to a matter. Once the required certificate has been obtained, the statutory bar on presenting proceedings is lifted. A subsequent process concerning the same matter is voluntary. Its certificate is not the certificate referred to in section 18A(4) and does not trigger the limitation modifications in section 207B of the Employment Rights Act 1996.

3. The Employment Judge erred in suggesting that accepting the claimant’s construction would permit an extension ad infinitum. A Day A outside the primary limitation period cannot extend it, and section 207B(4) supplies a long stop. The error was immaterial because Garau governed the dispositive issue.

4. The claimant did not establish a basis for the EAT to depart from Garau. A decision is per incuriam only where a relevant legislative provision or binding authority was overlooked or not considered. The claimant instead repeated substantially the same construction arguments rejected in Garau. The earlier decision was neither per incuriam nor manifestly wrong.

5. The two certificates objectively concerned the same matter. At the first contact, the claimant complained of procedural unfairness in his dismissal and sought reinstatement. Those facts related to unfair-dismissal proceedings, regardless of his mistaken belief that ACAS could compel the employer to reinstate him. The Tribunal’s finding was therefore open to it. The claim was filed after the applicable time limit, and it had been reasonably practicable to file it in time.

• Employment Appeal Tribunal: Appeal dismissed. The EAT upheld the Employment Tribunal’s conclusion that the second early-conciliation certificate did not extend time and that the unfair-dismissal complaint was out of time.
• Employment Tribunal: In a judgment sent to the parties on 12 August 2017, Employment Judge Legard struck out the unfair-dismissal complaint for want of jurisdiction. He held that the two certificates concerned the same matter and that timely presentation had been reasonably practicable.