Ms B Pawlicka v DWP Government Recruitment Service: 3300784/2022
EMPLOYMENT TRIBUNALS
Case No 3300784/2022
Between
Ms B PawlickaClaimantDWP Government Recruitment ServiceRespondent
Before
Employment Judge FrenchDate 3 June 2024
JUDGMENT
The claimant’s application dated 6 April 2022 for reconsideration of the judgment sent to the parties on 2 April 2022 is refused.
REASONS
hearing.
[1]There is no reasonable prospect of the original decision being varied or revoked, because the claimant applied for a reconsideration on the basis that the respondent’s non-attendance at the interim relief hearing meant that she should automatically have been granted interim relief (s129(9) of the Employment Rights Act 1996). This is not correct. The power outlined at s129(9) is only used when the requirements of s129(1) Employment Rights Act 1996 are satisfied. Section 129(1) sets out the test to be applied and satisfied in the case of a claimant asking for interim relief. Only if that test is satisfied does the Tribunal go on to consider the form which any interim relief should take. Section 129(2)-(9) sets out the steps to be taken by a Tribunal deciding what type of order to make. Section 129(9) indicates that where the claimant is entitled to interim relief and the respondent does not attend the hearing, then the interim relief takes the form of an order for continuation of the contract of employment (as distinct from an order for reinstatement or reengagement). The claimant has to be found to be entitled to interim relief under s129(1) before s129(9) comes into effect in the case.[2]The claimant has sent in some further documents after making her application for a reconsideration. The Tribunal has considered emails dated 4 April (2 emails), 7 April, 9 April (2 emails) and their attachments. In particular, she has sent a document which refers to the discussion on 16th December 2021 about whether she would be given a permanent contract. The document records, via tick box, that the claimant “would like to be considered for a permanent contract with DWP at Aldershot JCP, subject to successful completion of the Line Manager Assessment.” The document does not Case No: 3300784/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72 confirm that the claimant’s contract was in fact made permanent during, or as a result of, that discussion on 16th December 2021.[3]The original Tribunal decision was made on the basis of the submissions made by the claimant and the documents which she presented during the course of the hearing up to and including the point where the judge announced her decision and attempted to give oral reasons for it. The Judge did not deny the claimant her “appealable rights.” The judge merely gave her decision and attempted to give the reasons for it. It is now up to the claimant to decide whether she wishes to appeal.[4]The claimant has also suggested that the absence of an ET3 at the time the hearing took place means that interim relief should have been granted. The issue of the ET3 is a separate and distinct matter which has no bearing on whether interim relief should be granted. Interim relief applications may be heard and determined before the deadline for filing an ET3 has elapsed. The Tribunal administration can check when the proceedings were served on the respondent and whether the ET3 has been filed within the relevant time limit. If it has not, then consideration can be given to issuing a rule 21 judgment. That is a separate question from the granting of an interim relief order and different principles apply.[5]The decision on the application for interim relief has no bearing on the substantive claim as set out in the ET1. That claim can be determined in the usual way, on the evidence, at a full merits hearing. Employment Judge Eeley Date: 6 May 2022[1]The claimant seeks to bring claims for automatic unfair dismissal, disability discrimination, notice pay, arrears of pay and other payments. The question before me today was whether the claimant’s claims for disability discrimination, notice pay, arrears of pay and other payments could proceed because the claimant had not carried out ACAS early conciliation prior to submitting those claims.[2]It was accepted that the Tribunal does have jurisdiction to consider (i.e. is able to consider) the claimant’s claim for automatic unfair dismissal, as the claimant had sought interim relief in relation to that claim within her original Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017 claim for and therefore ACAS early conciliation was not required in respect of that claim.[3]The key facts were not in dispute and I summarise them below. In essence, the issues I had to decide in light of those facts were:a. Whether the claimant was required to undertake ACAS early conciliation in respect of those claims which were not subject to her interim relief application, or whether the fact that part of her claim was subject to an interim relief application meant that ACAS early conciliation was not required for the entirety of her claim;b. Whether, by undertaking ACAS early conciliation after submitting her claims, the claimant had rectified any previous defect caused by her not undertaking ACAS early conciliation prior to submitting her claims;c. If I found that the claimant had been required to undertake ACAS early conciliation, and that the defect had not been rectified, whether the claimant’s claims other than automatic unfair dismissal could proceed.[4]The claimant gave oral evidence and I had before me a file of documents amounting to 212 pages, along with five additional documents provided by the claimant on the day of the hearing. I heard oral submissions from both parties and written submissions on behalf of the respondent.[5]I gave my decision orally at the hearing, along with oral reasons, and the claimant requested that I provide my reasons in writing, which I now do. One point I do wish to clarify is that the claimant stated during the hearing, before I had heard evidence, that she felt that I had already made my decision on this matter and that she would be appealing. I reassured the claimant that I had not yet made my decision at the time, however for completeness I record here that I did not make my decision until listening to the evidence and considering the submissions made by both parties.
Facts
[6]The claimant was employed by the respondent as an Administrative Officer from 10 August 2020. On 25 January 2022 she was informed that her employment was to be terminated and that termination took effect on 18 March 2022.[7]The claimant said in her evidence that she spoke with ACAS in January 2022 and was told that she did not need to conciliate for an interim relief application. I have no reason to doubt what the claimant has said and I accept that this conversation happened. For the avoidance of doubt, the claimant does not allege that this was formal ACAS early conciliation and/or that she provided ACAS with the “prescribed information” for the purposes of early conciliation at this point.[8]The claimant submitted an Employment Tribunal claim on 1 February 2022, claiming unfair dismissal (relying on protected disclosures), disability Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017 discrimination, notice pay, arrears of pay and “other payments”. At box 2.3 of that form, in response to the question “Do you have an ACAS early conciliation certificate number”, the claimant ticked “No”. Then, under the question “If No, why don’t you have this number?” the claimant ticked “ACAS doesn’t have the power to conciliate on some or all of my claims”. In box 8.2 of her claim form the claimant stated “This claim contains an application for Interim Relief due to my disclosure on Monday 24th January 2022”.[9]The claimant confirmed in evidence that, at the time of submitting her claim, she did not have an early conciliation certificate number and had not provided the prescribed information to ACAS, being her name/address and the respondent’s name/address. The claimant’s position is that she did not need to do so as she was applying for interim relief, and that what she needed to do was to make sure that she commenced early conciliation within three months (less a day) from the dismissal date. I address these points in my conclusions below.[10]The claimant’s interim relief application was dealt with at a hearing on 29 March 2022 and was not granted. The details around that application are not relevant for the purposes of the matter before me, save that I would note that the claimant was, and remains, very unhappy about that outcome and sought to refer to it on a number of occasions at this hearing. The claimant also takes issue with the fact that the respondent did not attend that hearing, however the respondent’s position is that it was unaware of it.[11]A Notice of Claim was sent out by the Tribunal on 20 May 2022, requiring the respondent to respond to the claim on or before 17 June 2022. The claimant takes issue with the fact that the respondent had until 17 June 2022, which she believes is in excess of the 28 days ordinarily permitted by the Tribunal. The issue here is that the Notice of Claim was not sent out until 20 May 2022 and therefore, whilst it is true that the claimant submitted her claim some time before that and more than 28 days had elapsed by that point, the 28 days would only start from the point at which the Notice of Claim is sent out, and therefore the timescales provided to the respondent were correct.[12]On 13 June 2022 the respondent’s representative wrote to the Tribunal, submitting that the claimant had failed to comply with the requirements for ACAS early conciliation and requesting a public preliminary hearing to consider the matter. The claimant replied on 14 June 2022, stating that she had contacted ACAS before submitting her claims but had not been offered early conciliation, and also asserting that exceptions apply for claims related to protected disclosures. The claimant wrote again on 20 June 2022, objecting to any preliminary hearing on various grounds which I need not address here, and attaching a document setting out why she believed she had complied with ACAS requirements. In essence, she argued that(a) the deadline for conciliation was 17 June 2022 (being three months less a day following the dismissal date) and(b) her claim was exempt from the requirement for early conciliation. She confirmed this position again by email dated 5 July 2022. Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017[13]On 17 June 202 the claimant was issued with an ACAS certificate, confirming that conciliation had started and ended on 17 June, however it does not appear to have been provided to the Tribunal or to the respondent at that point.[14]On 26 August 2022 the claimant confirmed to the Tribunal and respondent that she now had a valid ACAS number obtained within the prescribed period (although did not provide the number or a copy of the certificate).[15]On 13 September 2022, following the issuing of the Notice of Preliminary Hearing by the Tribunal, the claimant emailed the Tribunal stating that such a hearing would be an abuse of process by the respondent, that it was against the Tribunal’s Rules of Procedure to require an ACAS certificate upon initiating conciliation, and that it would only be justifiable to have a preliminary hearing if that also included a retrial of her interim relief application (along with some other points which I need not address here). She repeated similar assertions by further email on 14 September 2022.[16]Following specific requests from the respondent for information, the claimant provided the early conciliation certificate number to the respondent on 7 October 2022. Following further requests for the actual certificate itself, the claimant eventually provided that to the respondent on 21 October 2022. That certificate confirmed that conciliation had commenced on 17 June 2022 (and ended that same day). At this point I will address one point raised by the claimant in that she said that the certificate was confidential. Whilst the content of any without prejudice or settlement discussions are indeed confidential and not for sharing with the Tribunal, this certificate is needed to demonstrate on what date conciliation took place (with no details provided about whether or not either party actively tried to settle the case). It is therefore needed to work out whether the relevant time limits and requirements to carry out early conciliation have been complied with and it is commonplace for such documents to appear in the file at hearing.
Law
[17]Section 18A of the Employment Tribunals Act 1996 states that: “(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.”[18]Section 18 sets out a list of "relevant proceedings". All of the claimant’s claims save for her claim for automatic unfair dismissal in respect of which she sought interim relief fall within that list, namely claims under section 23 of the Employment Rights Act 1996 (wages), claims under section 111 of the Employment Rights Act 1996 (unfair dismissal), claims under section 120 of the Equality Act 2010 (discrimination) and claims for breach of Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017 contract under Article 6 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[19]What is not included in that list is a claim for interim relief in respect of any automatic unfair dismissal under section 103A Employment Rights Act 1996: that is exempt from the requirement.[20]Section 18A(8) states: A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4). Subsection (4) refers to the ACAS early conciliation certificate provided by ACAS at the end of early conciliation.[21]Rule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 provides that: “To satisfy the requirement for early conciliation, a prospective claimant must -(a) Present a completed early conciliation form to ACAS in accordance with rule 2; or(b) Telephone ACAS in accordance with rule 3”. Rules 2 and 3 then make clear that, whichever option is chosen (i.e. the form or telephone), the prospective claimant must provide their name / address, and the prospective respondent’s name/address.[22]The relevant extract from Rule 12(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) states that: 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 – (d) one which institutes relevant proceedings, 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[23]Rule 12(2) goes on to state: "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).[24]Where a claim form has been presented without the required ACAS early conciliation number in circumstances where early conciliation was required, the requirements of section 18A of the Employment Tribunals Act 1996 are not met by the claimant subsequently providing an early conciliation certificate, even if the claimant’s claims would still at that point have been brought within the required time limits. In those circumstances the claimant Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017 would need to issue a new claim after the ACAS early conciliation certificate was issued: Pryce v Baxterstorey Limited [2022] EAT 61.[25]Where an employment tribunal claim consists of some claims which are exempt from the requirements under section 18A of the Employment Tribunals Act 1996, and some claims which are not, the parts of the claim which is not exempt remains subject to the requirement to provide prescribed information to ACAS in advance of bringing proceedings: Webster v Rotala plc T/A Diamond Bus North West UKEAT/0015/20.[26]An incorrect address on an early conciliation certificate will not prevent that certificate from being valid: Peacock v Murrayfield UKEAT/0117/19/JOJ[27]It is worth noting separately (for reasons that will become apparent in my conclusions) that, under section 123 of the Equality Act and under sections 111, 48 and 23 of the Employment Rights Act, the applicable time limits for bringing the claims that the claimant sought to bring is 3 months plus early conciliation extension as applicable from the act complained of or termination date (as applicable).
Conclusions
[28]The question is whether, in failing to undertake ACAS conciliation prior to submitting her claim form, but then submitting a certificate dated 17 June 2022, the claimant had taken sufficient steps to comply with the requirements of s18A Employment Tribunals Act 1996.[29]The first point to note is that I do not believe that it matters whether or not the claimant spoke with ACAS in January 2022, as the claimant accepts that she did not provide the prescribed information and no certificate was issued. Her case is simply that she did not have to.[30]Turning therefore to whether the claimant was indeed required to provide the prescribed information to ACAS and obtain a certificate prior to submitting her claim, the wording of s18 and s18A of the Employment Tribunals Act 1996 is clear. Whilst interim relief applications under s103A ERA are exempt, none of the other claims which she brought were.[31]The claimant submits that, because part of her claim was exempt, the whole of her claim did not require a certificate. Unfortunately, that is not the case. The case of Webster v Rotala plc T/A Diamond Bus North West UKEAT/0015/20 makes this clear: that case specifically considered the scenario where part of the claim was exempt and part was not, and found that the exemption only relates to those exempt parts. This is supported by the wording of box 2.3 on the claim form which gives as one reason for not providing an ACAS certificate number that [bold added for emphasis] “My claim consists only of a complaint of unfair dismissal which contains an application for interim relief.” The claimant did not in fact tick that box in any case but instead ticked that ACAS does not have the power to conciliate on some or all of my claim. Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017[32]I do have some sympathy for the claimant who I have no reason to believe deliberately disregarded the law: it is likely that she simply did not realise what she was required to do, as was the case for the claimant in the case of Pryce v Baxterstorey Limited [2022] EAT 61. Unfortunately for the claimant however, that case does make clear that this is a jurisdictional matter for the Tribunal and, however sympathetic the Tribunal is to the claimant’s position, there is no ability for the Tribunal to exercise any discretion in this matter. The wording of s18A(8) of the Employment Tribunals Act 1996 is clear that a person may not submit a claim for a relevant matter without having gone through early conciliation.[33]The conciliation that the claimant did later go through did not remedy this: Pryce v Baxterstorey Limited [2022] EAT 61 makes clear that, where a certificate is provided after the claim form is issued, that is insufficient. The early conciliation must be carried out before the claim is issued and, if it has not been, as the Judge indicated in that case, the only way forward is for the claimant to issue a new claim once the early conciliation has happened.[34]I also considered the case that the claimant referred to: Peacock v Murrayfield UKEAT/0117/19/JOJ. That case relates to the wrong address being provided on the form, not a situation where no form was provided. The claimant submitted that this showed that the prescribed information does not have to be accurate. I find that this does not assist the claimant as all that case shows is that an incorrect address still counts as an “address” for the purposes of prescribed information. The claimant here provided no address at all to ACAS prior to submitting her claim.[35]The claimant also submitted that the appropriate time limit would be 3 months less one day, and therefore her ACAS certificate number was obtained within the relevant time limits. That is correct in relation to the time limits for bringing claims, but the matter before me today is a separate issue about the requirement for ACAS early conciliation to take place prior to the claim form being issued. Regardless of whether the claim was brought within that 3 month period, it must also be brought after early conciliation takes place: in this case the claimant accepts that she issued her claim form first.[36]Having reviewed the precise wording of Rule 12 of the ET Rules, I accept that the correct course of action would have been for the Tribunal to reject the claim before any Notice of Claim was issued, in so far as it dealt with those matters other than the interim relief application. It is unfortunate that this did not happen. Nonetheless, a similar situation arose in Pryce v Baxterstorey Limited [2022] EAT 61 and it was held there that this is a jurisdictional matter and the Tribunal therefore has no choice but to address the issue when it did come to light.[37]Therefore, I must find that, despite the claim not having been rejected under Rule 12(1) of the ET Rules, the Tribunal does not have jurisdiction to consider the claimant’s claims other than for automatic unfair dismissal. Therefore, I dismiss the claimant’s claims for disability discrimination, notice Case No: 3300784/2022 V 10.7 Judgment with reasons – rule 62 March 2017 pay, arrears of pay and other payments. For the avoidance of doubt, the claimant’s claim for automatic unfair dismissal under section 103A of the Employment Rights Act 1996 is not affected by this Judgment and will proceed.[38]For the claimant to be able to proceed with claims for disability discrimination, notice pay, arrears of pay and other payments in the Employment Tribunal, she would have needed to submit a fresh claim following receipt of the ACAS certificate on 17 June. The claimant may now wish to consider whether she wishes to do so: the claim would of course now be outside of the required time limits and so would need to be accompanied by an application for the Tribunal to extend the relevant time limits. This is a matter for the claimant. Employment Judge Edmonds Date 22 January 2023
Conclusions
[1]Firstly, I apologise to the parties for the delay in receiving this reconsideration Judgment. This is due to the fact that the claimant’s application, although made in July 2024 was not referred to me until 6 November 2024. I have then progressed the matter as expeditiously.[2]On 23 July 2024, the claimant applied for a reconsideration of the Judgment sent to the parties on 22 July 2024 for three reasons.[3]The claimant’s claim was dismissed by me on 3 June 2024 because I concluded that the Tribunal did not have jurisdiction to hear the complaint of automatic unfair dismissal (s103A of the Employment Rights Act) under s111 Employment Rights Act 1996. I gave oral reasons for this decision at the time, setting out my reasons in full after carefully considering the law, evidence and representations made. Written reasons have not been requested by either party and I do not seek to provide these as part of this re-consideration Judgment. Case number: 3300784/2022[4]In summary, however, the claimant presented a complaint of automatic unfair dismissal. The claim was presented on 1 February 2022. The effective date of termination (EDT) was 18 March 2022.[5]Section 111 of the Employment Rights Act 1996 states as follows:(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).(3) Where a dismissal is with notice, an employment tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.(4) In relation to a complaint which is presented as mentioned in subsection (3), the provisions of this Act, so far as they relate to unfair dismissal, have effect as if— (a) references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires, (b) references to reinstatement included references to the withdrawal of the notice by the employer, (c) references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice, and (d) references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.[6]The claimant therefore presented her claim before the EDT. Under s111(3) the Tribunal has jurisdiction to hear a complaint presented prior to the EDT where a dismissal is with notice. I concluded that the dismissal was not on notice and rather it was a fixed term contract which expired by effluxion of time. As such I concluded Case number: 3300784/2022 that the Tribunal did not have the jurisdiction to hear the complaint and dismissed
the claim.
[7]The claimant’s first ground for re-consideration is that ‘the law for fixed term employee stipulates that there will still be a claim in a case that the employee was dismissed after serving notice.’ The law is set out above. I do not consider that there has been any misapplication of the law. I carefully applied this to the facts in reaching my conclusion.[8]The claimant’s second ground for re-consideration is that ‘under PIDA, every employee/worker is protected incluiding from detrimental treatment regardless of the period of their engagement/employment.’ I did not consider length of service or period of employment in making my decision and therefore do not consider that this is ground for re-consideration.[9]The claimant’s third ground is that ‘my former employer failed to provide me with a contractual 2 weeks notice when discharging me with no pay on 14.3.2022 while claiming my contract ended on 18.3.2022. Using breach of contract to evade a claim under PIDA is unlawful.’ The claimant suggested at the hearing that the EDT was 14 March 2022. This was inconsistent with the date stated in her ET1. In any event, however the claim was presented on 1 February 2022. The decision I reached was based on whether the claimant was subject to a notice period at the time that she presented her claim, and I concluded that she was not. I stress that in reaching my Judgment I considered carefully the evidence, made findings of fact, and applied the law to those findings in my conclusions. Having considered that part of the application I am satisfied that it seeks to challenge the findings of fact and conclusions and is an attempt to re-litigate the case.[10]Under rule 71 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended, “ET Rules of Procedure”, a party can make an application for reconsideration within 14 days of the date on which the original decision was sent or within 14 days from the date that the written reasons were sent, if later.[11]Rule 72(1) provides: “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 Case number: 3300784/2022 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.”[12]Under rule 72, ET Rules of Procedure, and having regard to the matters above, I have concluded that there is no reasonable prospect of the Judgment being either varied or revoked. Accordingly, this application by the claimant for a reconsideration, is refused.