Ash v Iss Facility Services Ltd

Under the version of the Employment Tribunal Rules then in force, a claim instituting relevant proceedings which omitted an ACAS early-conciliation number, without a valid exemption, had to be rejected. The mandatory language in Rules 10 and 12 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 left no discretion to waive the defect under Rule 6.

The Tribunal was also obliged to return the rejected form with an explanation of the rejection and of the right to seek reconsideration. That safeguard may permit correction of the defect, but its failure does not make an Employment Judge's later mandatory rejection erroneous on the information then available.

The claimant brought claims including unlawful deductions from wages. His ET1 stated that he had no ACAS early-conciliation certificate and omitted its number. Employment Judge Beard rejected the remaining claims on 19 November 2019.

On appeal, evidence emerged that the claimant had in fact obtained an earlier certificate before presenting his claim, and that it had been sent to the respondent. The evidence had not been before the Employment Judge. The central issue was whether the Judge had erred in law by rejecting the ET1 for non-compliance with the early-conciliation procedural requirements.

1. Appeal dismissed. On the material available to the Employment Judge, the ET1 did not contain an early-conciliation number and the asserted exemption did not apply. Under the then applicable Rules 10 and 12 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, rejection was mandatory. The Judge therefore made no error of law.
2. The mandatory requirement could not be waived through Rule 6. Rule 6 did not override the express duty to reject a claim which failed to comply with the early-conciliation requirements. The reasoning in Cranwell v Cullen and E.ON Control Solutions Limited v Caspall was applied.
3. The Tribunal itself had failed to reject and return the ET1 at the earlier stage, with information explaining how to seek reconsideration. That was a mandatory and important procedural safeguard. Its omission was significant, but did not alter the correctness of the Employment Judge's decision once the issue was raised on the evidence then before him.
4. The newly available certificate showed that the claimant had undertaken early conciliation before issuing the claim. It did not, however, cure the omission of the certificate number from the original ET1 for the purposes of this appeal. The EAT could not exercise the Employment Tribunal's powers after dismissing the appeal.
5. The claimant could apply to the Employment Tribunal out of time for reconsideration, supplying the earlier certificate number. If reconsideration were allowed and the defect rectified, Rule 13 would treat the claim as presented when rectified; the Tribunal would then determine limitation, including the effect of conciliation on time limits. The EAT considered that route more practical than admitting the fresh evidence on appeal.

• Employment Appeal Tribunal: appeal dismissed; the Employment Judge's rejection was not erroneous on the information then available.
• Employment Tribunal: Employment Judge Beard rejected the claimant's remaining claims on 19 November 2019 because the ET1 did not comply with the early-conciliation requirements.