Ash v ISS Facility Services Limited

A claim form which institutes relevant employment tribunal proceedings but does not contain an ACAS early-conciliation number, and does not validly claim an exemption, had to be rejected under the then applicable rules. The word shall imposed a mandatory requirement. Neither the tribunal nor an Employment Judge had a discretion under Rule 6 to waive that defect.

The procedural scheme also required the tribunal to return the rejected form with reasons and information about seeking reconsideration. That safeguard was important, but its failure did not show an error of law in a Judge who later rejected the claim on the information then available.

The claimant brought claims for unfair dismissal, holiday pay and overtime payments. His ET1 stated that he had no ACAS early-conciliation certificate and did not include its number. The Employment Judge rejected the remaining wage claims because the form did not comply with the early-conciliation requirements.

On appeal, evidence emerged that ACAS had issued an earlier certificate before the ET1 was presented and that it had been sent to the respondent. That evidence had not been before the Employment Judge. The central issue was whether the Judge had erred in law by rejecting the claim form despite the later-discovered certificate and the tribunal's earlier failure to reject and return the form.

1. Appeal dismissed. On the material before the Employment Judge, the ET1 did not contain an ACAS early-conciliation number and wrongly asserted that ACAS lacked power to conciliate. The Judge was therefore obliged to reject the claim. Rules 10 and 12 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 were mandatory and allowed no relevant discretion.

2. Section 18A of the Employment Tribunals Act 1996 requires a prospective claimant to contact ACAS before instituting relevant proceedings and prevents presentation without an early-conciliation certificate, subject to specified exceptions. Although the claimant had in fact obtained a certificate before issuing the ET1, he did not include its number. The later evidence could not establish that the Employment Judge had erred on the information then available.

3. Rule 6 did not permit a tribunal to override the mandatory rejection requirement. A non-compliant claim had to be rejected, so there were no extant proceedings to which that general case-management provision could apply. The subsequent amendment granting a limited interests-of-justice discretion did not govern the 2019 decision.

4. The tribunal should initially have returned the ET1 with a rejection notice explaining how to seek reconsideration. That mandatory step was an important safeguard. Its omission was serious, particularly where the claimant had undertaken early conciliation but had lost the original certificate.

5. The claimant could apply to the Employment Tribunal out of time for reconsideration, supplying the earlier certificate number. If reconsideration were allowed, the tribunal would then determine presentation and limitation issues concerning the substantive wage claims. The EAT did not itself admit the fresh evidence or exercise the Employment Tribunal's powers.

• Employment Appeal Tribunal: appeal dismissed; the Employment Judge had not erred in law in rejecting the non-compliant ET1 on the material then before him.
• Employment Tribunal: Employment Judge Beard's order dated 19 November 2019 rejected the claimant's unlawful-deduction claims for failure to comply with the early-conciliation claim-form requirements.