Employment Judge CooksonIn person for claimantMrs Kent (instructed by solicitor) for respondentDate 16 October 2019
JUDGMENT
[1]The claimant’s claim for unfair dismissal was not submitted within 3 months and it was reasonably practicable for the claim to be submitted in time. The claim is dismissed.[2]The claimant’s claim for disability discrimination was not submitted within 3 months starting with the date of the alleged act (dismissal). However, it is just and equitable to allow extra time for the claimant, in the circumstances of this case, to extend the time for presenting the claim to 28 March 2019. That claim will continue.
REASONS
Background Facts
[1]Mr Reed (who I will refer to as “the claimant”) began working at the respondent on 2 November 2004 and his employment ended on 11 December 2018. He was employed as a postman. Case No: 1303503/2019 2[2]Following his dismissal on 11 December 2018, the claimant contacted ACAS, and there is an early conciliation certificate which is dated 25 February 2019 (as the date conciliation started and ended). His claim was submitted on 28 March 2019.[3]At an open preliminary hearing on 27 September 2019 I found that the claimant had until 25 March 2019 to present his claim when I applied the more favourable test to the claimant in relation to the “stop the clock” provisions in the Employment Rights Act s207(4)(b) (and the equivalent provisions in the Equality Act 2010). As a consequence I had found that his claims were three days out of time.[4]I determined that the claimant’s claim for unfair dismissal was not submitted within 3 months and it was reasonably practicable for the claim to be submitted in time. The claim was dismissed.[5]The claimant’s claim for disability discrimination was not submitted within 3 months starting with the date of the alleged act of discrimination (dismissal). However, I have found that it was just and equitable to allow extra time for the claimant, in the circumstances of this case, to extend the time for presenting the claim to 28 March 2019. That claim was allowed to continue.[6]I was not asked to produce written reason for that decision. My key findings of fact given in the oral judgment were as follows:a. Mr Reed has told us that he suffers from two serious mental health conditions. He has also told us that he has some difficulties reading and he referred to having learning difficulties. He is not good with computers, although his wife has assisted him and he has had some, sometimes unhelpful, advice from other family sources. He was not advised by his trade union once employment ended and he was deterred from seeking advice from the Citizens Advice Bureau because they said he would have to pay depending on his means and he was deterred by the complexity of the information they required to allow him to obtain free advice.b. Mr Reed has told us that in the period following his dismissal, he had had financial difficulties, his wife has been very unwell and he is also responsible for the care of his daughter who has autism. It is relevant that amongst the difficulties his wife faces she has conditions which affect her hands and fingers and Mr Reed was dependent on her to access the internet.c. Mr Reed made contact with ACAS after Christmas. The precise details of that contact are rather vague, he admits that there was a delay between ACAS telling him that he should act, in his words, “as soon as” and that his delay in submitting his claim was at least in part due to his mental health problems and because he and his wife struggled with the online form. That is consistent with the fact that the claim was Case No: 1303503/2019 3 submitted by post.”[7]Bailey Wright & Co, on behalf of the claimant, applied to the Employment Tribunal for a reconsideration of my original decision by a letter dated 11 November 2019, in essence asserting that the claim was not out of time and my decision had been wrong because the existence of an earlier early conciliation certificate meant that the claim had been brought in time. Regrettably that application was not drawn to my attention until my return from leave over Christmas and the New Year. I asked the tribunal staff to obtain the respondent’s solicitors comments. By an email dated 16 January 2020 the respondent’s solicitors stated that they no longer asserted the claim was out of time.[8]Bailey Wright & Co had provided assistance to the claimant under a legal Aid certificate but do not represent him in these proceedings.[9]The case was listed for a preliminary hearing on 7 February 2020 and I was to determine the application for a reconsideration at the hearing. However in considering the papers before the hearing it became clear that a jurisdictional matter arose which I would need to consider before I could look at the application for reconsideration, although it is in event linked to that application.[10]In their letter of 11 November 2019 Bailey Wright & Co, on behalf of the claimant, made the following points:a. Mr Reed was previously advised by Irwin Mitchell. He contacted ACAS and obtained an early conciliation certificate which has now been produced to the tribunal. That certificate correctly named the respondent but stated the claimant’s place of work rather than the registered office. That certificate referred to conciliation between 19 January 2019 and 14 February 2019. The number of that certificate is R107195/19/07. The number of the certificate referred to in the claim form is R122424/19/07.b. On the basis of the first certificate the claimant was advised the limitation period would run to 10 April 2019.c. The claimant was advised to, and obtained, a further conciliation certificate because the address was incorrect.d. On the basis of the advice he says he received, the claimant contacted ACAS and obtained a 2nd certificate showing the correct name of the respondent and the registered office correct address. That is the certificate which I looked at the hearing on 27 September 2019. That is the certificate which shows conciliation started and concluded on the same day (25 February 2019). The number of the certificate referred to in the claim form is R122424/19/07. Case No: 1303503/2019 4e. The claimant sent the new certificate to his then solicitors. Bailey Wright & Co suggest that that firm failed to appreciate the date of the conciliation referred to in the new certificate and wrote to the claimant to advise him that the limitation period remained 10 April 2019.[11]The only early conciliation certificate on the tribunal file is that second certificate (R122424/19/07).[12]It can be seen from my original findings that Mr Reed had offered a very different explanation as to why his original claim appeared to be submitted out of time. He referred to taking legal advice but that seemed to be in relation to another matter and he told us that he was not being supported by the trade union solicitors. In sworn evidence he had told me that that he did not know what the limitation period for bringing a claim was. The claimant was asked in cross examination what he had been told about time limits by his trade union representative and he told us that he had thought the time limit was three years as it is for a personal injury claim. His evidence was that he had struggled to get advice from the CAB. Based on what is now said by the claimant on his behalf by his new solicitors, at this hearing I raised my concern that it appears that the evidence which he gave to this tribunal previously was at best far from frank about his understanding of the law and that he has not met his duty to fully cooperate with the tribunal under rule 2 of the Tribunal Rules. The claimant told me that he had simply forgotten about his contact with Irwin Mitchell.[13]The issue which I am now asked to consider in the application is this, in light of the original certificate both claims, for unfair dismissal and disability discrimination, were submitted in time because of the original certificate? The issue which I have identified as requiring initial consideration is the impact of Rule 10 and Rule 12 on the claim in light of the existence of the earlier, differently numbered early conciliation certificate (R107195/19/07). As this is jurisdictional matter, the fact that it has not been raised by the respondent is immaterial.
The law
[14]The relevant provisions I have to consider here in relation to the validity of the claim form and the significance of the information contained about early conciliation, are set out in the Rules.[15]Rule 10(1) (c) states that the tribunal shall reject a claim if it does not contain:a. an early conciliation number; Case No: 1303503/2019 5b. confirmation that the claim does not institute any relevant proceedings; orc. confirmation that one of the early conciliation exemptions applies.[16]These rules have resulted in a significant amount of litigation and I am bound by a number of EAT decisions in this area.[17]The following cases seem to be of significance:a. In Sterling v United Learning Trust UKEAT/0439/14, the President, Langstaff J, states in relation to the interpretation of Rule 10(1) (c) that 'it is implicit that the [early conciliation] number is an accurate number'. In that case, the tribunal was obliged to reject a claim where the early conciliation number written on the ET1 had not been accurate.b. In North East London NHS Foundation Trust v Zhou UKEAT/0066/18 it was found that it was correct for a tribunal to reject a claim in which the claimant had missed the last forward slash and final two digits of the early conciliation number when transcribing it on the ET1.c. There is an “escape route” when claimants make mistakes completing a claim form. Parliament has given employment judges the power to accept a claim notwithstanding certain 'minor errors' (Rule 12(2A)), but we have no power to overlook an error in relation to an early conciliation certificate number. If there had been any doubt about that the position was made very clear by The Rt. Hon. Lady Justice Simler, as she now is, when she was President in Adams v BT plc UKEAT/0342/15, [2017] ICR 382 (at [7])).d. The strictness of the substantive defect provisions in Rule 12 was also considered by Langstaff J in Cranwell v Cullen UKEATPAS/0046/14. That is case where no early conciliation number was included in the claim form due to a mistaken understanding of the exemption provisions on the part of the claimant. In consequence the claim could not proceed.e. That decision was followed in E.On Control Solutions Ltd v Caspall UKEAT/0003/19. There, a tribunal had decided that it had power under Rule 29 at a preliminary hearing to amend the defective claim form (which had cited a different claimant's early conciliation certificate number) so that it included the early conciliation certificate number which related to the correct claimant. That correct number had been in Case No: 1303503/2019 6 existence at the relevant time, the claimant's solicitors had simply failed to use it on the claim form. On appeal the EAT held that this was an impermissible approach.f. At the time of the 27 September 2019 hearing I believed there was only one early conciliation certificate. I now know there was an earlier certificate which was related to these proceedings. The case of Revenue and Customs Commissioners v Garau (UKEAT/0348/16/LA) makes clear that the early conciliation certificate provisions do not allow for more than one certificate of early conciliation per “matter” to be issued by ACAS. If more than one such certificate is issued, a second or subsequent certificate is outside the statutory scheme and has no impact on the limitation period.g. In the case of Mrs S Peacock v Murreyfield Lodge Limited, (UKEAT/0117/19/JOJ) Barklem J considered the following situation: i. An early conciliation form was submitted by the claimant who provided an address at which she had attended a meeting with a director of the respondent. That address was not the registered office of the respondent nor one at which the respondent itself carried out its business, although the director worked there. The respondent was duly contacted by ACAS at that address, and it responded. An early conciliation certificate was then provided by ACAS. ii. A second early conciliation form was submitted by solicitors for Mrs Peacock who were unaware of the earlier early conciliation process. Proceedings were issued by them on a date which would have been in time had the second early conciliation certificate been the one governing the proceedings, but out of time if the first certificate had been validly issued. iii. The EAT held that the first certificate was indeed valid, and thus the claim was brought out of time. There are 2 limbs to that decision. First, there is no requirement under Rule 12 of the ET Rules for ET staff to refer a claim form to an employment judge if the address of the prospective respondent on a claim form is different from that on the early conciliation certificate and second, having regard to the purposive and non-technical approach to the early conciliation process which other decisions of the EAT have set out, the provision by a claimant of an address at which business in relation to a respondent is carried out is compliant with the early conciliation regulations. My conclusions and reasons[18]The valid early conciliation certificate in these proceedings is the first one which the claimant had obtained which incorrectly stated the respondent’s address. It is not suggested that that certificate related to different Case No: 1303503/2019 7 proceedings and indeed the application for reconsideration is predicated on that certificate being valid. This means that the second certificate fell outside the statutory scheme and was not valid for these proceedings. That in turn means the claimant’s claim form did not meet the requirements of Rule 10(1)(c) because it referred to the incorrect early certificate number and that is a substantive defect for the purposes of Rule 12.[19]In Caspall HHJ Eady QC concluded that although the expectation in the Tribunal Rules is that a defective claim will be rejected immediately, if the Tribunal Service fails to draw the error to the attention of a judge or if the judge conducting the first review of the claim does not spot the point, the requirements of Rule 12 do not go away. A tribunal will be obliged to reject a claim that contains a substantive defective within the meaning of Rule 12 whenever this is first drawn to its attention or first becomes apparent, even if, as in the Caspall case and indeed here, this does not occur until some months after the claim has been lodged. In this case there was no way for either the Tribunal Service or any employment judge looking to the file to know that the claim was defective until the existence of the first certificate became known. As I am now aware of the existence of the first early conciliation certificate not only do I not have the power to amend the claim to include the correct early conciliation certificate number, as in essence I was invited to by Bailey Wright & Co in their application for reconsideration, I am required to reject the entirety of the claimant’s claim form. I appreciate that this will seem harsh to the claimant but this is not something I have any discretion in relation to. The Rues are clear and very strict.