Mr D Malandain v Network Rail Infrastructure Ltd: 2300470/2026
JUDGMENT
[1]The Claimant’s application for reconsideration of the decision of the Tribunal rejecting his Claim given in this matter on 11 March 2026 succeeds, and that decision is varied – the Claim is now rejected under Rule 13(2) of the Employment Tribunal Procedure Rules 2024 (the ET Rules), because while the Claim Form states that “My employer has already been in touch with Acas”, that was not in fact the case. BACKGROUND[2]The Claimant’s Claim Form was filed on 6 March 2026. The Claimant claims that, whilst applying for a role with the Respondent as a Trainee Signaller, he was discriminated against on the ground of disability, contrary to the Equality Act 2020 (the 2010 Act).[3]The Claimant also ‘ticked the box’ to indicate that he was bringing a whistleblowing complaint, but the nature of that complaint is not readily discernible from the Claim Form he presented. 1 of 6[4]Section 2.3 of the ET1 Form presented by the Claimant, concerning Acas early conciliation information, was the Claimant ticked “no” in response to the question “Do you have an Acas early conciliation certificate number?”, said the reason he did not have this number was because “My employer has already been in touch with Acas”.[5]The Claim Form was referred to a Legal Officer at the London South Employment Tribunal, who decided to reject it. The reason given was: “in section 2.3 of the claim form, you have not given an early conciliation number of ticked one of the boxes to explain why you don’t have an early conciliation number”.[6]The Legal Officer enclosed some explanatory notes, and the Claimant wrote to the Tribunal on the same day applying for reconsideration of the Legal Officer’s decision. APPLICATION[7]On 11 March 2026, the Claimant applied, under Rule 13 of the ET Rules, for reconsideration of the Legal Officer’s decision of 11 March 2026 to reject his Claim. The Tribunal also regards the Claimant’s application as an application for the matter to be considered afresh by a judge under Rule 7(2) of the ET Rules.[8]The Claimant’s reasons for applying for reconsideration of that decision are that: a) He initiated Acas Early Conciliation on 16 February 2026 – which he supports by an email notification from Acas to him, of that date, confirming that he had notified Acas about his dispute; b) He has since been awaiting the assignment of a conciliator for nearly four weeks, but “Acas has not yet issued the formal certificate due to significant internal delays”; and c) It would be a significant injustice if his Claim was barred due to administrative delays by Acas that are entirely outside his control. LAW[9]Rule 12(1) of the ET Rules provides: “The Tribunal must reject a claim if… (c) it does not contain one of the following-(i) an early conciliation number;(ii) confirmation that the claim does not institute any relevant proceedings; 2 of 6(iii) confirmation that an early conciliation exemption applies”.[10]Rule 13 of the ET Rules provides that: “(1) The Tribunal staff must refer a claim to the Tribunal if they consider that the claim, or part of it, may be- … (d) one which institutes relevant proceedings and is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply… (2) The Tribunal must reject a claim, or part of it, if it considers that the claim, or part of it, is of a kind described in sub-paragraphs (a), (b), (c) or (d) of paragraph (1). …”.[11]Rule 7(1) of the ET Rules provides that the Senior President of Tribunals may delegate certain judicial functions to legal officers, and the Senior President of Tribunals set out which functions had been so delegated in a Practice Statement of 6 January 2025. Those functions include: “a referral under rule 13(1)(c), (d), (e), (f) or (g)”.[12]Rule 7(2) states that: “Within 14 days from the date on which the Tribunal sends notice of a decision made by a member of staff under paragraph (1) to a party, that party may apply in writing to the Tribunal for that decision to be considered afresh by a judge”.[13]Rule 14 of the ET Rules sets out the process for reconsideration of rejection of claims. That provides that: “(1) A claimant whose claim has been rejected (in whole or in part) under rule 12 (rejection: claim form not used or failure to supply minimum information) or 13 (rejection: substantive defects) may apply for a reconsideration on the basis that either-(a) the decision to reject was wrong, or(b) the notified defect can be rectified. (2) An application under paragraph (1) must be in writing and it must be received within 14 days of the date that the notice of rejection was sent. It must explain why the decision to reject is wrong or rectify the defect and it must state whether the claimant requests a hearing. (3) If the claimant does not request a hearing, or the Tribunal decides, on considering the application, that the claim is to be accepted in full, the Tribunal must determine the application without a hearing. Otherwise the application must be considered at a hearing attended only by the claimant. 3 of 6 (4) If the Tribunal decides that the decision to reject the claim, or part of it, was correct but that the defect has been rectified, the claim must be treated as presented on the date that the application containing the rectification was received by the Tribunal.”[14]Section 18A(1) of the Employment Tribunals Act 1996 sets out the requirement for a prospective claimant to contact ACAS before instituting relevant proceedings, and section 18A(7) sets out that: “A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases”.[15]Those prescribed cases are set out in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (as amended). Regulation 3 of those Regulations lists the prescribed exemptions, which includes: “(c) A [the prospective claimant] is able to show that the respondent has contacted ACAS in relation to a dispute, ACAS has not received information from A under section 18A(1) of the Employment Tribunals Act 1996 in relation to that dispute, and the proceedings on the claim form relate to that dispute”.REASONS
[16]As set out in Rule 12(1), the Tribunal only has power to accept the Claimant’s Claim, if it contained one of: a) An Early Conciliation number; b) Confirmation that the Claim does not institute relevant proceedings (which, in any event, it does, because complaints of disability discrimination and, if presented, detriment for having made a protected disclosure, are “relevant proceedings” (as defined in section 18 of the Employment Tribunals Act 1996); or c) Confirmation that an early conciliation exemption applies.[17]In this case, the Claimant said that an early conciliation exemption applied, being that his employer had already been in touch with Acas. Therefore, pursuant to Rule 13(1), the Claim was referred to a Legal Officer.[18]The Legal Officer determined that the Claim should be rejected because “you have not given an early conciliation number or ticked one of the boxes to explain why you don’t have an early conciliation number”. In fact, that was not correct, because the Claimant had said that he did not have an Early Conciliation number because “My employer has already been in touch with Acas”.[19]However, it is clear from the Claimant’s reconsideration application that the relevant exemption in Regulation 3(1), being sub-paragraph (c), that he relied on in his Claim Form did not in fact apply – he is not able to show that the 4 of 6 Respondent in this case contacted ACAS in relation to the dispute between the Claimant and the Respondent about the Claimant’s unsuccessful application to be a Trainee Signaller.[20]This means that the Claim Form must be rejected because, as set out in Rule 13(2), the Claim is of a kind set out in Rule 13(1)(d), being one which institutes relevant proceedings on a Claim Form that states that an early conciliation exemption applies when it does not in fact apply.[21]Turning to the points made by the Claimant in his reconsideration application: a) That he initiated Acas Early Conciliation on 16 February 2026 – that is not enough to satisfy Rule 13(2). The Tribunal must still reject the Claim; b) That he has since been awaiting the assignment of a conciliator for nearly four weeks, but “Acas has not yet issued the formal certificate due to significant internal delays” – unfortunately, that does not provide a basis for the Tribunal to disapply the mandatory rejection of the Claimant’s Claim provided for by Rule 13(2); and c) That it would be a significant injustice if his Claim was barred due to administrative delays by Acas that are entirely outside his control – the statutory time limits are generally extended by the period of ACAS early conciliation, so the delays on the part of ACAS may not affect the time limits for the presentation of the Claimant’s Claim. If they do, this is an argument that the Claimant may choose to make when, upon receiving an Acas Early Conciliation certificate, he is able to present a Claim Form in relation to the matters complained of if, because of Acas delays, he presents his complaints outside of the statutory primary time limit in section 123(1)(a) of the 2010 Act. If the Claimant is able to evidence that the late presentation of his Claim is due to factors outside of his control, that may form a basis for the Tribunal to find that the Claim was presented within “such other period as the employment tribunal thinks is just and equitable”, as provided for by section 123(1)(b) of the 2010 Act. That will be a matter for the Employment Tribunal if this jurisdictional point is an issue.[22]For the reasons set out above, the Claimant’s application for reconsideration succeeds and the decision dismissing the Claimant’s claim is varied – it is rejected pursuant to Rule 13(2), because the Claim is of the kind described in Rule 13(1)(d), being: “one which institutes relevant proceedings and is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply”. 5 of 6