Employment Judge HousegoIn person for claimantDate 16 August 2022
JUDGMENT
The claims are struck out.
REASONS
[1]The Claimant’s employment with the Respondent ended on 26 February 2021.[2]Accordingly, the three-month period for filing a claim with the Employment Tribunal ended on 25 May 2021.[3]On 01 June 2021 the Claimant filed this claim with the Employment Tribunal.[4]The claim form states that the Claimant did not have an Acas early conciliation certificate. He ticked the box stating that his only claim was one of unfair dismissal in respect of which he was claiming interim relief.[5]The claim form did not include a claim for interim relief.[6]No claim for interim relief could be made, because such a claim must be made within 7 days of being dismissed, and this claim was more than three months after the end of the Claimant’s employment with the Respondent.[7]The claim form included claims of disability discrimination and race discrimination, and for unpaid wages. All these claims needed an Acas certificate.[8]In a case management hearing on 24 February 2022 the Claimant accepted that he did not have two years’ service, and withdrew his claim for unfair dismissal, which was dismissed by a judgment that day.[9]At that hearing the Claimant also withdrew the claim of race discrimination and that was also dismissed by a judgment dated 24 February 2022.[10]The claim form does not contain a public interest disclosure claim (either in its’ narrative, or in the box marked “other claims”, but a box was ticked asking that reference be made to a regulator about a public interest disclosure claim. The Respondent has pleaded to that claim, without objecting that an application to amend was required. That is a claim for automatically unfair dismissal. No thought has been given to the fact that the claim for unfair dismissal was dismissed on 24 February 2022. I take it that this related only to the standard unfair dismissal claim and that a claim for automatically unfair dismissal for a public interest disclosure reason is still extant. The solicitor for the Respondent accepted this analysis.[11]All the remaining claims remaining require an Acas early conciliation certificate. The Claimant obtained one after issuing the claim. The Acas early conciliation period was 09 – 14 June 2021. As the three months elapsed on 25 May 2021 the claims were already out of time. For this reason, there is no extension of time arising from the early conciliation period.[12]It is settled law that it is not possible to get a retrospective Acas early conciliation certificate1.[13]There are therefore two issues for the Claimant: 13.1. He has no Acas early conciliation certificate for his claims. 13.2. His claims are out of time.[14]The Acas certificate is a jurisdictional requirement, and as there is none for any of the claims, I am obliged to dismiss them. (The later Acas certificate does not count – the whole point of the early conciliation requirement is that people who want to claim against a former employer have to give Acas the chance to see whether the claim can be settled.)[15]While that is sufficient to deal with the claims, for the sake of completeness I also deal with the out of time points.[16]In respect of the monetary claims and the public interest disclosure automatically unfair dismissal claims the test for permitting a late claim to proceed is whether it was reasonably practicable for the claim to be brought in time, and if not whether the claim was brought in such further time as I consider reasonable.[17]The Claimant knew when filing the claim that it was out of time – the claim form says so. 1 Pryce v Baxterstorey Ltd [2022] EAT 61[18]It was reasonably practicable for these claims to be brought in time. In his claim form the Claimant says he was waiting for the Respondent to investigate his grievances, raised at the time he left. Taking the Claimant’s case at its highest, the outcome letter rejecting the grievances was dated 21 May 2021. That left the Claimant four days to file his claim. He did not do so until 01 June 2021. There is no reason given for that delay, other than he wanted to get legal advice and it was complicated. Therefore, I would have dismissed the money and public interest disclosure unfair dismissal claims as out of time, because it was reasonably practicable for them to be brought in time.[19]The Claimant says it was all very difficult for him, for a variety of reasons including mental health problems. He was able to file his claim online. To do so he had to go past the screens that tell claimants they first have to approach Acas, and the system signposts them. It is not difficult to start the early conciliation process. Starting the process extends the time, usually by a month. The Claimant said that he was focussed on submitting his claim. It was reasonably practicable for the Claimant, when getting the grievance outcome, to start the Acas early conciliation process. He would then have had ample time to put his claims in to the Tribunal. He did not do so.[20]The test for extending time disability discrimination claim is whether it is just and equitable to extend time. It would not have been. There is nothing to suggest that the claimed disability impaired the Claimant’s ability to bring a claim. For it to be just and equitable to extend time there needs to be some reason why it is appropriate to extend the time beyond the statutory limit. None was forthcoming.[21]Nor is this a strong claim. It appears to be that because the Claimant was off sick (for three months continuously from 11 November 2020), he was dismissed ending on 26 February 2021. He was off sick because of claimed mental health problems which the Claimant says is a disability. The claim appears to be no more than to say that he was dismissed and that he has a disability and so the one was caused by the other. It does not seem to be inherently unusual or unfair to dismiss a person on a temporary contract (as was the Claimant) with only two months’ service (start date was 07 September 2020) before going off on a long-term sickness absence with no prognosis of return. This is not a strong claim. Accordingly, I would not have extended time in the disability discrimination claim.[22]However, and for the avoidance of doubt, the out of time points are secondary, because the claims must be struck out for want of an Acas early conciliation certificate.[23]I record that I have not addressed the issue of whether the Claimant is or was disabled by reason of mental health problems, nor whether, if that was the case the Respondent knew or should have known of it. That is because there were two reasons why the claims had to be dismissed, and so this was not appropriate.[1]At a hearing on 16 August 2022 I dismissed the Claimant’s claim, because he had not obtained an Acas early conciliation certificate before starting it.[2]The judgment was promulgated on 30 August 2022. By email of 08 September 2022 the Claimant applied for a reconsideration of that judgment.[3]The Claimant also made complaint about me, which the Regional Employment Judge dismissed on 15 September 2022. He indicated an intention to appeal, which he is entitled to do, but which is not a matter upon which I can comment.[4]The reason given by the Claimant for requesting a reconsideration is that the witness statements and disability statements or evidence were not considered. The Claimant also says that he has reasons for disagreeing with my decision.[5]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those relevant Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. Reconsideration by the Tribunal on its own initiative 73. Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).[6]The application was made promptly. The Respondent has not made any observations on it.[7]I refuse the request for a reconsideration because the request does not give any reason why my decision was incorrect. I struck out the claim because it was issued without the Claimant having previously obtained an Acas early conciliation certificate. That was the correct decision, and the Claimant gives no reason why it was not. That the Claimant disagrees with the decision is not a reason to reconsider it.