Labour & European Law Review Weekly Issue 473 08 June 2016
The law requires claimants to record the number of their Acas early conciliation certificate on their ET1 form. The Employment Appeal Tribunal (EAT) held in Adams v British Telecommunications plc that if a claimant presents a second claim out of time because they inserted the wrong number on the original form, tribunals should focus on whether it was reasonable for the claimant to have believed that they had correctly presented the first claim on time.
After her employment with BT was terminated on 1 October 2014, Ms Adams notified Acas on 18 December that she wanted to lodge claims of unfair dismissal and race discrimination. Early Conciliation (EC) was completed on 18 January 2015 and she received her early conciliation number - R078129/14/07 – the same day.
On 16 February 2015 she handed in her tribunal claim form but instead of writing R078129/14/07 on it, she omitted the last two digits. On 17 February the Employment Tribunal’s Central Office returned the claim form to Ms Adams’ solicitor, stating that it would have to be resubmitted because it had the wrong number on it.
Her solicitors received the claim form on 19 February and re-submitted it in person the same day, this time with the correct certificate number on it. As it was now two days out of time, Ms Adams asked the tribunal to extend time to allow her to resubmit her claim form.
The tribunal judge, however, refused holding that it had been “reasonably practicable” for Ms Adams to present the unfair dismissal claim in time. Had she written the correct certificate number on the form, it would have been submitted within the time limit. As the responsibility for writing the wrong number lay with her and her representative, the tribunal refused to extend time for the unfair dismissal claim.
Nor was it “just and equitable” to extend time so that the race discrimination claim could be heard. Ms Adams had waited until “the last minute” to consult solicitors, thereby putting herself in a situation whereby she would not have time to rectify any mistakes. The delay was wholly due to the “carelessness and sloppiness” of the claimant and her solicitors.
The EAT however, allowed the appeal on the basis that the question for the tribunal was not whether the mistake Ms Adams made on 16 February was a reasonable one, but whether her mistaken belief that she had correctly presented the first claim on time was reasonable, having regard to all the facts and the circumstances.
As the mistake was presumably unintentional, it was reasonable to assume that Ms Adams was not aware that she had inserted the wrong number on the form. Had she done so, she would presumably have corrected it. In any event the rules allowed for an “escape route” in respect of minor errors such as transposing names and addresses and the court could not see how inserting the wrong number was any different.
The judge also made an error in law with regard to the decision that it was not just and equitable to extend time for the race discrimination claim in that she failed to consider the question of prejudice to the parties. This was significant as Ms Adams had lost the right to bring a discrimination claim while BT’s case would not be prejudiced by an extension of time.
It therefore allowed the appeal.
In this case the EAT made clear that the correct approach was to focus on the second claim and whether there was any impediment to the timely presentation of ‘that’ claim.
This is the latest in a recent line of authorities where a sensible and sympathetic approach in response to procedural errors and technicalities has been taken.