Mr P Wood v Lakeview Rest Homes Ltd: 2402850/2019 and 2410046/2019
JUDGMENT
[1]The claims in case number 2402850/2019 are rejected pursuant to Rule 12(2) of the Employment Tribunals Rules of Procedure 2013.[2]The counterclaim, case number, 240046/2019, cannot proceed in the absence of a validly instituted claim from the claimant.[3]No application for costs in relation to this hearing was made but may be made following the sending of this judgment to the parties in the usual way.REASONS
[1]It was common ground that case number 2402850/2019 contained an ACAS Early Conciliation number (R128423/19/45) which related to a second certificate obtained by the claimant, rather than the first certificate (number R351156/18/53). In these circumstances, and on the basis of the authority of E.ON Control Solutions Limited v Caspall UKEAT/0003/19 and other authorities referred to in that case, the parties agreed, and I considered, that I was bound to reject the claims in case number 2402850/2019 pursuant to rule 12(2) of the Employment Tribunals Rules of Procedure 2013.[2]Enclosed with this judgment are some explanatory notes called ‘Claim Rejection – Early Conciliation: Your Questions Answered.’ They include information about applying for reconsideration of the decision to reject the claim.[3]Since the claim on which the counterclaim depends is not a valid claim, the counterclaim cannot proceed. Notes of discussion relating to further proceedings[4]The claimant sought to present a second claim about the same subject matter as the first on 12 August 2019 (case number 2410737/19). That case was not the subject of this hearing so no decisions were made at this hearing about this case, but we had some discussion about this. The claimant used the ACAS Early Conciliation Number from the first certificate on this form (R351156/18/53). It appears he did not enclose a copy of the certificate itself with the claim form. The tribunal’s check of the number on the ACAS system produced the outcome “No certificate returned from ACAS for R351156/18/53”. In these circumstances, Regional Employment Judge Parkin rejected the claim giving the reasons, set out in a letter dated 5 September 2019, that “you have not complied with the requirement at rule 10(1)(c) of the above Rules, in that the early conciliation certificate is not available as the early conciliation number is no longer valid according to ACAS”. The claimant said at this hearing that he had not received this letter, which was sent to him by email to an address which he confirmed was correct. However, I gave him a copy at this hearing. There is still time for an application for reconsideration of the rejection of that claim to be made.[5]The bundle prepared by the respondent for this preliminary hearing contained copies of both ACAS certificates.[6]Ms Millin informed me that the claimant will be making an application for reconsideration of the rejection of case number 2410737/19. I suggested that the application should be accompanied by a copy of the ACAS certificate and that it be copied to the respondent, inviting them to confirm that they do not object to reconsideration of the decision to reject the claim, on the basis that the ACAS certificate referred to on the claim form was a valid certificate. Mr Carter informed me at this hearing that the respondent would not object to reconsideration on this basis. In these circumstances, it may be that reconsideration could be dealt with on the papers. If the application succeeds, the claim would be valid from the date of presentation: 12 August 2019.[7]It is a matter for the claimant, on advice from Ms Millin, to decide whether also to apply for reconsideration of the decision to reject case number 2402850/2019, on the basis that the notified defect can be rectified. If he does so, I suggest that a request be made to combine this with reconsideration of the rejection of case number 2410737/19. If the rejection of case number 2402850/2019 is reconsidered, the claim would be treated as presented when the defect was rectified.[8]If a claim proceeds, then there will be time limit issues and an issue as to whether the claimant had sufficient service to claim unfair dismissal. There is a dispute as to the claimant’s employment status in the period 2 March 2015 to 31 March 2017. These issues will need to be determined at a preliminary hearing and it would be helpful for the tribunal to make case management orders in preparation for such a hearing about disclosure of documents relevant to those issues, production of a bundle of documents and exchange of witness statements.[9]On 28 August 2019, the claimant made an application to extend time for lodging a claim form. Although case number 2402850/19 was cited, it is unclear whether the claimant made the application in relation to that claim or his second claim (case number 2410737/19). That application has been overtaken by the events of case number 2410737/19 being rejected in the letter of 5 September 2019 (it does not appear that Regional Employment Judge Parkin saw that letter before rejecting the claim) and by the rejection of the claims in case number 2402850/19 at this hearing. No response other than this judgment will, therefore, be made to that letter although, no doubt, the claimant will seek to rely on some of the arguments in that letter if a claim proceeds, following reconsideration, and the issue of time limits is considered at a preliminary hearing.