Since the introduction of mandatory early conciliation (EC) in May 2014, claimants have been required to contact Acas before lodging a tribunal claim, unless their claim is exempt. In Cranwell v Cullen, the Employment Appeal Tribunal (EAT) held that there is no discretion under the rules to waive or vary that requirement.
When submitting her claim to a tribunal for sexual harassment against her former employer, Ms Cranwell indicated on her ET1 form that she was exempt from the requirement under section 18A of the Employment Tribunals Act 1996 to take part in early conciliation.
In her claim, she alleged that she had been treated in a way that was “demeaning, derogatory and discriminatory” by Mr Cullen and which had culminated in a physical assault. As such, the very thought of conciliation was problematic for her as she assumed it would involve talking to Mr Cullen against whom there was a court order barring him from contacting her.
Section 18A of the Employment Tribunals Act 1996 requires potential claimants to provide prescribed information to Acas before starting tribunal proceedings.
Rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 states that a tribunal must reject a claim if it does not confirm that one of the exemptions from early conciliation applies. Rule 12 states that a tribunal must reject a claim if it is made on a claim form which confirms that one of the exemptions from early conciliation applies when in fact, it does not.
Rule 6 enables tribunals to waive or vary a requirement where a claimant has not complied with certain rules.
The employment judge rejected Ms Cranwell’s claim because she had not complied with the requirement to contact Acas and although she had indicated that she was exempt from early conciliation, none of the exemptions applied in her case.
She appealed on the basis that such a strict approach should be subject to the discretion of the tribunal otherwise the claimant would be denied access to justice. She therefore argued that the tribunal should at least have considered if it would be just for the requirement for early conciliation to be waived in her case under Rule 6 of the Employment Tribunal Rules.
The EAT said that, although it wanted to reach a different conclusion, it could not construe Rule 6 as providing the necessary discretion to avoid the consequences of Rule 12. It followed therefore that the tribunal judge was right to reject the claim.
At a practical level, the EAT suggested that Ms Cranwell could have spoken to or written to Acas and explained that conciliation was pointless. The Acas officer would very likely have agreed and then provided the requisite certificate or number allowing her to proceed with her claim.
Her only option now was to re-submit her claim, unless it was struck out for being out of time. However, a tribunal was likely to look at it “with considerable sympathy in the particular circumstances of her case, and bearing in mind the fact that she may not have appreciated that the early conciliation certificate did not necessarily involve her first having to have had contact with the man who had treated her so badly, assuming her claims to be correct”.
While the appeal judge expressed some sympathy for Ms Cranwell, there is no scope under these new rules for an employment judge to apply their discretion. Instead Ms Cranwell will have to start early conciliation and rely on another judge to decide if it is just and equitable to allow it to proceed.