Mrs J John v Cheadle Royal Healthcare Ltd: 2304922/2021
REASONS
[1]This preliminary hearing was fixed in order to consider whether an ACAS Early Conciliation Certificate had been sought and whether the time for lodging the claim should be extended to allow the claim to proceed. Chronology[3]The claimant’s employment commenced on 9 April 2004. She remains in the employment of the respondent. The claimant made no contact with ACAS but presented her claim on 23 September 2021 complaining of events in November 2020. Submissions[4]The Tribunal received oral submissions from the respondent.Law
[5]The outline of the early conciliation scheme is set out in section 18A of the Employment Tribunals Act 1996, the detail being provided by regulations made under that section, namely, the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254. The rules of procedure are contained in the Schedule to these regulations and are known as the Early Conciliation Rules of Procedure (SI 2014/254 Sch r 1(1) R). Further procedural requirements relating to the EC scheme are contained within the ET Rules, SI 2013/1237 Sch 1 rr 10–12. The essence is that unless the claimant comes within an exemption, there must be an Early Conciliation Certificate.[6]The Equality Act 2010 provides: 123 Time limits (1) [Subject to section 140A and 140B] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.[7]Harvey provides a non-exhaustive list of factors which may prove helpful in assessing individual cases: — the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings); — the presence or absence of any other remedy for the claimant if the claim is not allowed to proceed; — the conduct of the respondent subsequent to the act of which complaint is made, up to the date of the application; — the conduct of the claimant over the same period; — the length of time by which the application is out of time; — the medical condition of the claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim; — the extent to which professional advice on making a claim was sought and, if it was sought, the content of any advice given. Discussion and decision[8]The claimant did not seek an early conciliation certificate from ACAS. Furthermore, she has ticked “no” for question 2.3 of the ET1 as to whether she has an early conciliation certificate number. The Tribunal has no jurisdiction and the claim is dismissed.[9]In any event, the claimant’s claim relates to events in November 2020 accordingly the claim has been presented out of time and the tribunal does not have jurisdiction to consider the claim. There was no evidence that the allegations set out in the claim form are part of a continuing act under section 123(3)(a) of the Equality Act 2010, or that it would be just and equitable for the tribunal to extend time for submission of the claim under section 123(1)(b) of the Equality Act 2010.[10]In the absence of any evidence of the reason for the claim not being lodged in time or evidence of any continuing acts, there was no basis upon which the Tribunal could exercise any discretion. The Tribunal decided that the claim should have been lodged it time and it would not be just and equitable to extend the time. The Tribunal has no jurisdiction and the claim is dismissed.[11]The full merits hearing listed for 16-18 November 2022 is discharged.