Tribunal rules stipulate that claimants must submit an ACAS early conciliation certificate number along with their claim form. The Employment Appeal Tribunal (EAT) has held in Pryce v Baxterstorey Ltd that if the claimant fails to submit the certificate at the same time as the claim form, they cannot rectify the mistake by submitting it a few days later and asking for it to be added to the claim.
After an incident on 23 August 2019 which led to her dismissal, Ms Pryce lodged tribunal proceedings claiming race and sex discrimination. However, when filling in the tribunal form (the ET1), she wrongly ticked the box stating that ACAS did not have power to conciliate. Later the same day, she notified ACAS of her claim and on 27 August, she received a certificate to confirm she had complied with section 18A of the Employment Tribunals Act 1996. She then emailed the tribunal on the same day, asking for the ACAS reference number to be added to her ET1 form.
Her case was referred to an employment judge on 12 September, but for some reason the certificate number was not attached to it and the judge ordered it to be rejected. However, the matter was referred back to another judge a week later, this time with the certificate number attached, at which point the claim was formally accepted and her former employers were served with the claim form. They challenged the merits of her claim only, making no reference to the issue of ACAS conciliation.
Rule 18A(8) of the Employment Tribunals Act 1996 states that anyone who is subject to the requirement to make contact with ACAS cannot start tribunal proceedings without an ACAS certificate.
Rule 8(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that tribunal claimants have to start their claims by submitting a completed, prescribed claim form, the ET1.
At the hearing on 3 February, the employment judge noticed that the claim had initially been presented without an ACAS certificate and adjourned the proceedings so that the parties could make written representations.
Ms Pryce duly emailed the tribunal on 6 February acknowledging her mistake but explaining that she had not realised that she was supposed to go to ACAS before submitting a claim form. However, the employment judge decided that he did not have any discretion over the matter and dismissed her claim.
She appealed on the basis that once she had emailed the tribunal on 27 August with the certificate number, her application should have been treated as being compliant with all procedural requirements. Alternatively, the tribunal should have waived the requirement to re-present the claim once she had obtained the certificate.
Rejecting the appeal, the EAT held that Ms Pryce could not be said to have re-presented her claim when she submitted the certificate as rule 8 of the tribunal regulations requires a completed ET1 form to be submitted in the first instance. As she was not properly presenting her claim when she sent in the certificate on 27 August, she could not be said to be re-presenting it on that date.
As to the second ground of her appeal, the EAT held that the tribunal did not have the jurisdiction to waive the requirement to re-present the claim because if it did, it would undermine the express statutory requirement in section 18A(8) for claimants to provide an ACAS certificate.
As the tribunal did not have the power to waive the requirements of rule 8, the only way to rectify the error that Ms Pryce had made was to re-start her claim after she had obtained the certificate using the standard claim form.
This decision seems particularly harsh (as was acknowledged by the EAT) and certainly reinforces how strict tribunals can be and how those using the system have to be extremely careful to ensure they follow the rules to the letter.