Tracey Smith v The Restaurant Group (UK) Ltd

A claimant must complete only one mandatory early-conciliation process. Where a second certificate concerns the same matter, it does not extend the limitation period. A previous Employment Appeal Tribunal decision on that point should be followed unless exceptional circumstances justify departure.

When deciding whether to extend time, a tribunal should ordinarily consider the length and reasons for delay and prejudice to the respondent. The weight given to those matters, and to any possible alternative remedy, is for the tribunal. A claimant who gives no evidence explaining a delay may properly face an adverse exercise of discretion.

The claimant’s employment ended during her probationary period. She brought disability-discrimination claims under the Equality Act 2010 and a wages claim. She had obtained two early-conciliation certificates before presenting her ET1.

The Employment Tribunal held that she was disabled but that her claims were time barred. It treated the first certificate as operative and declined to extend time. The claimant appealed, contending that the first certificate was defective or displaced by later authority, and that the tribunal had erred in its exercise of discretion.

The central issue was whether the second certificate extended time and, if not, whether the tribunal’s refusal to extend time disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal was entitled to hold that the first early-conciliation certificate was operative. HM Revenue and Customs v Sera Garau [2017] UKEAT/0348/16/LA remained good law and was plainly correct. It was not affected by Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386, which concerned the consequences of an ET claim form containing an inappropriate certificate number rather than the limitation effect of a voluntary second certificate.

2. The statutory scheme in section 18A of the Employment Tribunals Act 1996 requires one mandatory early-conciliation certificate. The references to the certificate in section 207B of the Employment Rights Act 1996 and section 140B of the Equality Act 2010 concern that mandatory certificate. A second certificate concerning the same matter does not affect limitation. The claim was therefore 54 days late.

3. An Employment Appeal Tribunal may depart from an earlier EAT decision only in exceptional circumstances. No such circumstances were advanced. Romero v Nottingham City Council [2018] UKEAT/0303/17/DM required Sera Garau to be followed because it was neither per incuriam nor manifestly wrong.

4. The tribunal had applied the accepted statutory tests for extending time. It was entitled to attach weight to the claimant having legal and trade-union assistance, the absence of evidence explaining why no claim was brought after either certificate, and potential prejudice from delay. It did not need to identify specific memory evidence or quantify the respondent’s forensic prejudice. The possibility of an alternative remedy was considered only as a possibility and its weight was for the tribunal.

5. The reasons for delay will ordinarily be known to a claimant and advisers and are almost always relevant to the discretion. The tribunal was entitled to take account of the claimant’s failure to lead that evidence. Its discretionary conclusion was one it was entitled to reach.

• Employment Appeal Tribunal: Appeal dismissed in [2024] EAT 168.
• Employment Tribunal: Following a preliminary hearing in Glasgow, Employment Judge Wiseman held that the claimant was disabled but that her claims were time barred and outside the tribunal’s jurisdiction. The judgment was sent to the parties on 1 November 2023.