Employment Law – Case Law update

Recently, we have seen a couple of cases in relation to the relatively new Acas early conciliation (EC) process. The cases outline the importance of undertaking the process and set out the consequences where the EC process is not followed or where errors are made.

As a brief background, for the majority of tribunal claims the prospective claimant is required to contact ACAS and attempt conciliation prior to being able to make a tribunal claim. During the conciliation process the ‘clock’ for the purposes of tribunal claim time limits is paused. Once the conciliation is concluded ACAS provide the prospective claimant with an early conciliation certificate which contains the crucial early conciliation number and then the ‘clock’ restarts. When the claimant then proceeds to file the tribunal claim they are required to confirm that they have undergone the early conciliation procedure and enter the early conciliation number that ACAS provided.

Cranwell v Cullen

In this case the Employment Appeal Tribunal (EAT) confirmed that compliance with the new Acas early conciliation (EC) process is mandatory.

The EAT accepted in this case that the evidence supported the claim that the Claimant, Miss Cranwell, had been “appallingly badly treated by her former employer”, had suffered sexual harassment and that she was treated in a way that was “demeaning, derogatory and discriminatory, culminating in a physical assault” and that even this description “may not do justice to the full picture”.

It may well be that in this case the Claimant could not face the prospect of conciliating with her former employer and thought that this would be inevitable were she to have to enter into the EC procedure.

However, the requirements of EC are that the Claimant has to make contact with Acas and to provide certain information. No actual conciliation has to take place if the Claimant (or the employer) does not wish to actively participate. Unfortunately for Miss Cranwell, she clearly did not appreciate this until it was too late and her claim was rightly rejected by the ET.

Sterling v United Learning Trust

In Sterling, the claimant (S) went through the early conciliation process and received the relevant certificate and number. S then proceeded to file the tribunal claim, the relevant fee and application for remission four days before the time limit expired.

Unfortunately, the claim form was completed incorrectly (the form included an incorrect EC number) and the claim was rejected.  The Tribunal also sent the incorrectly completed form back to an incorrect address. When S finally received the rejection letter she immediately went down to the tribunal and corrected the error. Unfortunately, by this time the claim was received by the tribunal after the time limit had expired and the tribunal duly rejected the claim.

To further compound S’s problems her ‘representative’ (not a recognised legal representative) was less than effective. No application for reconsideration was filed (where it could have been argued that the error was purely clerical) which is the ‘usual’ process for matters like this. Instead S was forced to appeal to the EAT.

Unfortunately for S the EAT found against her and stated where an incorrect number is entered on the form then the tribunal is bound to reject it despite the fact that the procedure was followed and the error is relatively minor.

The lesson for everyone is that despite the fact that the early conciliation process is largely a ‘box ticking’ exercise, if it is not done correctly no matter how minor the error the consequences can be major.