20 July, 2015
The Employment Appeal Tribunal has held in the case of Cranwell v Cullen that the requirement to engage in early conciliation via ACAS before bringing a claim in the Employment Tribunal cannot be skipped unless one of the permitted exceptions apply.
The Claimant lodged a claim with the Employment Tribunal without complying with the requirement enshrined in s18A Employment Rights Act 1996 to firstly notify ACAS of a potential claim. The rule, which has been in force for all claims issued since 6 May 2014, states that unless ACAS are notified and a certificate is issued by ACAS, a claim cannot be heard in the Employment Tribunal.
The Claimant's arguments centred on the particular facts of her case, which were not at all pleasant. She alleged that her employer had subjected her to sexual harassment and treated her in a way that was demeaning and discriminatory, culminating in a physical assault. It was further alleged that the Claimant's employer was subject to a restraining order which prohibited him from contacting her, which if true would have made conciliation more difficult if not impossible depending on the wording of the order.
The judge was fully understanding of the Claimant's predicament and stated that "the very thought of conciliation for someone with her particular claim would be problematic". Despite this explicit sympathy, however, the judge found that the regulations provided no room for discretion, the Claimant having admitted that none of the five permitted exceptions applied as set out in the regulations.
He further pointed out that the Claimant could have made her submissions regarding conciliation to the ACAS officer, who would have been likely to have found there to be no point in further conciliation and granted the certificate without any need for there to be contact with the employer. It was therefore ruled that the first instance judge had acted correctly and had no choice but to reject the claim.
Although the outcome of this case was undoubtedly harsh on the Claimant given the understandable reluctance to engage in conciliation, it shows that even when conciliation seems a fruitless exercise a Claimant must notify ACAS of the potential claim.
Since the decision in Cranwell the strict application of the ACAS requirement has been re-emphasised by the Employment Appeal Tribunal in the case of Stirling v United Learning Trust. In this case the employee submitted her claim form with the incorrect Early Conciliation number. The form was sent back to the wrong address but by the time the employee resubmitted the form she was out of time. Despite the potential injustice to the employee the appeal judge found that the rules obliged the Tribunal to dismiss the claim. In these circumstances the employee can apply for reconsideration, however the unrepresented employee failed to do so. The case goes to show that although good legal advice comes at a price, a lack of representation can prove fatal to a claim.
For further information about the services the Employment team at Forbes can offer you or your business please contact Ruth Rule-Mullen by email or call 01772 220195.