J PRYCE v BAXTERSTOREY LIMITED

A claimant who is subject to early conciliation must obtain an ACAS certificate before presenting an Employment Tribunal claim. Under section 18A(8) of the Employment Tribunals Act 1996, a claim presented before the certificate exists is a nullity and the Tribunal has no jurisdiction to consider it.

An email sent after the certificate is obtained, asking the Tribunal to add its number to an earlier ET1, is not a re-presentation. A claim must be started by a completed prescribed ET1 presented in the manner required by rule 8. That requirement cannot be waived, and neither the Tribunal nor the respondent may waive the statutory precondition.

The claimant presented ET1 claims for race and sex discrimination on 23 August 2019. She had not then obtained an ACAS early conciliation certificate and incorrectly indicated that ACAS lacked power to conciliate. ACAS issued a certificate on 27 August 2019. The claimant emailed it to the Tribunal and asked for the reference number to be added to her form.

Although the Tribunal accepted and served the claim following an administrative error, Employment Judge Self later dismissed it for want of jurisdiction. The claimant appealed. The issues were whether her email could amount to a compliant re-presentation of the claim and, alternatively, whether the need to re-present could be waived.

1. Appeal dismissed. The claimant was required to comply with section 18A of the Employment Tribunals Act 1996. Section 18A(8) prohibited her from presenting proceedings before she had obtained an ACAS certificate. Accordingly, the ET1 presented on 23 August 2019 was a nullity and the Tribunal had no jurisdiction to consider it.

2. The claimant’s email of 27 August, enclosing the subsequently issued certificate and asking that its number be added to the ET1, was not a re-presentation of her claim. Rule 8(1) required a claim to be started by presenting a completed prescribed ET1. The applicable practice direction permitted presentation only online, by post or in person. The email was neither a completed ET1 nor a compliant means of presentation.

3. The Tribunal could not waive those requirements. Rule 6 expressly excluded rule 8(1) from its power to waive irregularities. More fundamentally, a power to dispense with re-presentation would conflict with the statutory requirement that a certificate be obtained before proceedings were instituted.

4. Rules 12 and 13 concerning rejection, reconsideration and rectification did not cure the error. Their mechanisms did not provide a means to validate a claim presented when no certificate existed. The only possible correction was to present a new completed ET1 after obtaining the certificate.

5. The EAT expressed sympathy for the claimant, including because the Tribunal’s administrative error had allowed the claim to proceed. It observed that a prompt fresh claim and any application to extend time would be matters for the Employment Tribunal, which would have to assess all relevant circumstances.

• Employment Appeal Tribunal: Appeal dismissed in [2022] EAT 61.
• Employment Tribunal: Employment Judge Self dismissed the race and sex discrimination claims for want of jurisdiction because they were presented before an ACAS early conciliation certificate had been issued.