Mr D McCulloch v Jacobs E&C Ltd: 2417866/2018
JUDGMENT
The Claim Form is rejected in accordance with Rule 12(1)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.REASONS
[1]The claimant entered into Early Conciliation on 11th December 2018 and the EC Reference Number given was R353789/18/24.[2]The Claim Form was presented on 12th December 2018. At box 2.3 the claimant recorded the EC Reference Number as R375789/18/24.[3]On 28th December 2018 by way of an email, a member of the Tribunal staff asked the claimant to provide the correct EC number so that a certificate could be obtained from ACAS. The claimant failed to respond to that email, so a further email was sent to the claimant advising him that should he not provide the correct number, his claim would be rejected.[4]On 14th January 2019 the claimant provided a copy of his Early Conciliation certificate which detailed his EC number as R353789/18/24. On 16th January 2019 the Tribunal accepted the claim and this was communicated to the parties by way of letter on 21st January 2019.[5]At the Preliminary Hearing on 20th August 2019, Counsel for the Respondent made submissions that the Tribunal was obliged to reject the Claim Form in accordance with Rule 12(1)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the case of E.on Control Solutions Limited v Caspall UKEAT/0003/19/JOJ.[6]Rule 12 provides as follows: “(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be –(a) one which the Tribunal has no jurisdiction to consider,(b) in a form which cannot sensibly be responded to or is otherwise and abuse of process,(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies,(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,(e) one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates; or(f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates. (2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a), (b), (c), or (d) of paragraph 1. (2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph 1 unless the Judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim. (3) If the claim is rejected, the form shall be returned to the claimant together with a notice of rejection giving the Judge’s reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for reconsideration of the rejection.”[7]The case of Sterling v United Learning Trust UKEAT/0439/14 established that where the rule requires that the EC number be set out, it is implicit that it is an accurate number and once the Tribunal had found that the number within the claim form was inaccurate, it was obliged to reject it.[8]In Capsall HHJ Eady QC determined that whilst Sterling was concerned with Rule 10, the effect of Rule 12 was the same. HHJ Eady QC also determined that the escape route in Rule 12(2A) did not apply to a claim form that contained an inaccurate EC number.[9]In accordance with Capsall it matters not that this issue has not been referred to me by a member of Tribunal staff. I am obliged to reject the claim if sub-paragraph 1(c) applies regardless of the stage of proceedings at which the issue arises.[10]I cannot apply Rule 6, that a failure to comply with any provision of the Rules does not render the proceedings void, because there are no proceedings once the claim has been rejected. For the same reason, I do not have the power to allow the claimant to amend the claim form in accordance with Rule 29 because there are no proceedings to case manage.[11]Finally, HHJ Eady QC determined that the overriding objective contained in Rule 2 does not allow me to ignore the mandatory requirements of the Rules as the same would not be a fair and just way of dealing with cases.