Following the introduction of mandatory early conciliation, claimants have to record the number of their Acas early conciliation certificate on their ET1 form. The Employment Appeal Tribunal (EAT) held in Sterling v United Learning Trust that tribunals are entitled to reject a claim if the number on the original form was wrong.
After she was dismissed on 20 February 2014, Ms Sterling submitted her ET1 claim form to the employment tribunal on Monday 1 July, the correct fee of £250 and an application for a fee remission. The last date by which the claim had to be presented, allowing for early conciliation, was 5 July.
The tribunal office then returned the form to her with a letter. Ms Higgins could not remember exactly what the letter said but thought it was something about not having the correct Acas early conciliation certificate number. Nor could she remember whether the paperwork in question was her claim form, her application for fee remission or both. In any event, the letter from the office was incorrectly addressed and was delivered to a neighbour. By the time Ms Sterling received it, it was a day or two after the deadline. She filled in the missing digits and took the paperwork to the tribunal at the first opportunity on Monday 7 July.
The tribunal inferred, on the balance of probability that Ms Sterling’s ET1 claim form as originally submitted did not contain a valid number, as required under Rule 10 (1)(c)(i) of the 2013 Rules of Procedure.
The tribunal noted that, if the claim form had been correct, there would have been no need to return it to Ms Sterling, and no need for her to bring it to the tribunal offices again on 7 July. On that basis, it concluded she had incorrectly put the early conciliation certificate number on her claim form.
Ms Sterling appealed on the basis that the claim form did, in fact, contain the correct number and the tribunal should not therefore have inferred that it did not. In addition, she argued that the tribunal should have held that it was not reasonably practicable to submit her claim form in time. In particular had the rejected claim form been returned to her correct address it would have arrived on Friday 4 July and she would have been able to resubmit that day.
The EAT upheld the tribunal’s decision to reject her claim because it was presented out of time. It rejected her argument that the tribunal was not entitled to make the inference that the form contained the wrong number. As Ms Sterling’s evidence was that she thought there was an error on the claim form it was not an error of law for the tribunal to come to the conclusion it did. Once the tribunal had found that the number was incorrect, it was obliged under Rule 10 to reject it unless she (or her representative) applied for it to be reconsidered, which neither of them had done.
Likewise neither of them had argued that it had not been reasonably practicable for her to present the claim earlier than she had. The burden was on her to show that it had not been and she had failed to discharge that burden. “The fault might not be great” but it was her responsibility to make sure that she put the right conciliation number on the form, which she had not done.
This is one of a number of decisions (see Cranwell v Cullen, LELR 425) where the tribunals are adopting a strict approach to compliance with early conciliation. The fact that Ms Sterling missed off two digits and was two days out of time to resubmit her claim because of an error by the tribunal service seems particularly harsh. In light of these recent judgments it is important that advice is sought early on to avoid claims being lodged at the last minute. In this case Ms Sterling could have applied for a reconsideration in which case her claim might have been allowed to proceed.