Mr S T Ukegheson v London Borough Of Haringey: 3301502/2013
EMPLOYMENT TRIBUNALS
Case No 3301502/2013
Between
Mr S T UkeghesonClaimantLondon Borough Of HaringeyRespondent
Before
Regional Employment Judge ByrneNot represented for claimantMr J Davies - Counsel for respondentDate 30 July 2019
JUDGMENT
[1]The claimant’s applications to postpone today’s hearing, his application for a further stay of proceedings and his application for transfer of the proceedings and his purported application for amendment of the claims and issues in these proceedings fail and are dismissed for the reasons that follow.
REASONS
[1]The claimant’s further postponement application. I have considered the further postponement application implicit in the third paragraph of the claimant’s email sent at 20 minutes past midnight on the morning of 23 August 2018, the date of the hearing. I note that he states his that his inability to attend today relates to matters requiring his attention in planning holidays for vulnerable children, namely young people suffering from emotional difficulties. His previous email of 15 August 2018 referred to “where we are going” in the second full paragraph at the section of the email beginning number[2]His email of 23 August 2018 refers to “final preparations and risk assessment/management plans for three extremely vulnerable young people and I cannot postpone their planned holiday”. It is unclear form those emails whether or not the claimant will be on holiday today or whether he is organising the holiday for others but will not be going with them on holiday. No further explanation for his non-attendance is given other than the holiday planning and associated documentation referred to. I am not satisfied there is good reason for a postponement of today’s proceedings on the basis of the information provided to the Tribunal by the claimant in seeking this postponement. This is a case which dates back to 2013. Applying the overriding objective, it is in all parties’ interests that matters be progressed today. The domestic appeal process, pursued by the claimant in relation to earlier decision in these proceedings appears to have been exhausted. For all those reasons I reject the further postponement application and direct the hearing listed to deal with identifying the remaining claims and issues and considering the claimant’s transfer application will proceed. 2. The claimant’s further application for stay. On the 3 August 2018 on the application of the claimant I signed an order staying the proceedings until 31 December 2018 or earlier determination of an application to the Supreme Court for permission to appeal the order made by the Court of Appeal on 27 July 2017. However, at the date I made that order the Supreme Court had refused the claimant’s application for permission to appeal the order made by the Court of Appeal on 27 July 2017 and had done so on 9 July 2018. I was unaware of that Supreme Court order when I signed the order staying proceedings on 3 August 2018. Accordingly the order I made was ineffective because the Supreme Court had already determined the claimant’s application. On 7 August I directed that a letter be sent to the parties pointing out that the effect of the Supreme Court order was to lift the stay of the proceedings and that the preliminary hearing previously listed for 23 August be re-instated.[3]The basis of the claimant’s application for a further stay, quoting from his email of 2 August 2018 sent to the Tribunal was “Let it be on record I will not participate in any hearing at the Tribunal until I have exhausted ALL legal routes available within the United Kingdom and Europe to seek redress of the breach of article 6 and 14 of the European Conventions on Human Rights which occurred on 25 September 2013, under the watch of Employment Judge Manley (who struck out the proceedings ) who admitted in her judgment to have been led (misled) by Ms Osho and Haringey Council Lawyer to reach a very flawed judgment. If the judgment is not revisited by the Supreme Court, it will surely be heard in Europe so let the respondent stop make unlawful and unreasonable applications that serves no purpose or than to increase costs to all parties.”[4]In a further email of 14 August 2018 from the claimant requesting a consideration of the decision to lift the stay of proceedings he set out states “1. In my application for stay of proceedings, I made it clear that the Supreme Court has agreed for me to make another application which is pending. This is fundamental to whatever will be decided at the preliminary hearing and I will therefore be severely prejudiced if I am not allowed exercise this right to make a fresh application based on advice from counsel.” Dealing with the possibility of further application to the Supreme Court I note from an email dated 19 July 2018, copied by the claimant to the respondent, incorporating the email of 18 July 2018 from a Mr Ian Sewell at the Supreme Court office the final paragraph of his email states “Amended Grounds of Appeal: there is no provision in the Supreme Court rules for re-opening an application for permission to appeal that has been refused. If you are advised by counsel that there is good reason to revisit the matter, then it is of course open to you to make a further application”.[5]I have had produced to me today by the respondent Section 2 of the UK Supreme Court Practice Direction 1 which sets out details of statutory restrictions on the Supreme Court’s jurisdictions. Paragraph 1.2.7 states “There are other statutory restrictions on the Court’s jurisdiction. The following are excluded from the Court’s jurisdiction and are inadmissible…..f. applications for permission to appeal against refusal by the Court of Appeal to re-open a previously concluded appeal or application for permission to appeal.” I have considered the order of Lady Justice Arden dated 19 February 2018 in which she refuses permission to re-open the appeal and refuses an application for an oral hearing. That is a refusal by the Court of Appeal to re-open a previously concluded appeal and it is clear to me that in those circumstances the claimant has exhausted the domestic appeal procedures open to him.[6]The respondent by email dated 15 August 2018 opposed the application to reimpose the stay. With reference to the claimant’s referral to a “pending application” to the Supreme Court they stated none had been made yet, that the claimant did not know when one would be made and that the Supreme Court had already told the claimant there was no provision under the rules for the type of application he seemed to be contemplating.[7]I directed by letter dated 20 August 2018 that the claimant’s application for reconsideration of the decision to lift the stay and for the imposition of a further stay would be considered at today’s hearing.[8]As already stated the decision to lift the stay was inevitable once I became aware of the Supreme Court’s refusal of the claimant’s application to appeal. Also, it is clear to me having considered the matters referred to at paragraphs 4, 5 and 6 above that the claimant has exhausted the domestic appeal process. There is no evidence before me that any appeal to any other Court has been presented by the claimant. There is no basis on which to reimpose the previous stay ordered or to order a further stay because the domestic appeal process with which the claimant has been involved is exhausted. It appears to me, applying the overriding objective, that it is in all parties interest that the claims remaining for determination be determined as soon as is practicable.[9]The claimant’s outstanding application for transfer of the proceedings. This application was made by the claimant by email of 19 August 2015 marked for the attention of “Regional Employment Judge Manley”. Employment Judge Manley was acting as Regional Employment Judge whilst I was on leave in 2015 and that would appear to be the reason why the email of 19 August is addressed to her. Essentially the reason advanced by the claimant as justification for a transfer was his view that Employment Judge Manley, who was as he understood it, the Regional Judge at Watford was biased towards him and preferred the respondent’s application for strike out which she had acceded to. The claimant appealed that decision. He amplified in an email addressed to me of 29 September 2015 that he wished his claims transferred, them in his view being “wrongly remitted to Watford Employment Tribunal” and requested they be transferred to another Employment Tribunal jurisdiction within London. The clear basis of his application was that the Watford Employment Tribunal had been dealing with his claims in a biased way.[10]By email dated 29 September 2015 the respondent addressed a number of matters including the claimant’s transfer application. Their opposition to the application was that the reason for it appeared to be the allegation that Employment Judge Manley was biased against the claimant, was in charge of the Watford Employment Tribunal and was able to influence the outcome of the case.[11]The claimant’s email of 23 August 2018 repeats his application for transfer stating “My case should be transferred to another Tribunal as I fear that I may NEVER get fair hearing and justice from Watford Regional Employment Tribunal. The respondent is clearly in control of proceedings at Watford Employment Tribunals from what has happened so far.” There is no other reason advanced today by the claimant as to why a transfer should be granted. Were a transfer granted, leaving aside for the moment the merits of the application, then inevitably that would cause further substantial delay. It would require a substantial investment of judicial time to understanding this case and what has happened to date in order, to deal effectively with all case management matters and applications that might arise prior to a final hearing. It would inevitably take time for a transfer of the file to be affected. Given the current pressures on Employment Tribunal resource both judicial and administrative I have no doubt that any transfer would result in avoidable delay to the ultimate determination of these proceedings.[12]The claimant is based in East London. The respondent is based in North London and the respondent’s witnesses, I am informed today, are London based. It is difficult to see what would be achieved by any geographical transfer to another London Tribunal. Any reduction in travelling time, given the effective public transport connections between London and Watford would in my view be marginal.[13]Returning to the claimant’s prime reason for seeking a transfer, namely his concerns about bias on the part of the Watford Employment Tribunal, there is nothing put before me today which justifies that concern. The allegation of bias appears to me to be intrinsically linked to the mistaken assumption that Employment Judge Manley is the Regional Employment Judge, which she is not, and that she can in some way influence the proceedings and makes an unjustified assumption that she might want to. I am entirely satisfied the claimant will receive a fair trial before the Watford Employment Tribunal and further that delay would inevitably occur were these proceedings to be transferred, and for all those reasons the application for transfer is rejected.[14]Has the Claimant any amendment application outstanding in relation to the claims and issues? The final matter I have to considered and determine today is what is raised by the third paragraph of the claimant’s email of 23 August 2018 where he states that if the hearing does go ahead today the Tribunal “should please deal with all the applications I have made since 24 September 2013 (amendments of lists of issues) which remain pending.”[15]I have considered in detail the correspondence file prior to the hearing to check what applications there are outstanding and whether any application relates to any proposed amendments. I have also had regard to the extent to which in appeal proceedings reference has been made to identify issues in this case. I have considered the transcript of the proceedings at the Employment Appeal Tribunal on 21 May 2015 presided over by the then President, Mr Justice Langstaff. In the reasons he refers to the heads of claim at paragraph 33 as identified in the case management discussion which took place before Employment Judge Smail on the 24 June 2013. The case management orders made at that hearing set out the claims for determination and the identification of the claims themselves was not subject to any appeal. The only claims and issues on which he expressly commented, “about which there was a degree of uncertainty” was the claimant’s assertion that there had been an unlawful deduction from wages. That is fully analysed at paragraph 53 of the Judgment and I provide for the additional information required from the claimant to clarify the sum claimed as having been unlawfully deducted in the case management orders made today. The Employment Appeal Tribunal were clear as to the claims and issues in the 2013 proceedings and there has been no appeal against the case management orders made by Employment Judge Smail in those proceedings when he identified the claims and issues.[16]At a Court of Appeal hearing on 15 June 2017 considering the appeals against Judgements of the Employment Appeal Tribunal, including the hearing of 21 May 2015 ,one of the matters recorded at paragraph 30 of the Judgement of the Court of Appeal is the nature of the pleaded case on reasonable adjustments. The Court of Appeal considered that a complaint of a failure to make reasonable adjustments was not part of the claimant’s pleaded case and that the orders made by the Employment Appeal Tribunal were properly made on the pleadings as they stood.[17]The order of Lady Justice Arden in the Court of Appeal of 19 February 2018, refusing the claimant permission to re-open the appeal, refers in the second paragraph to “the question then is whether it is factually correct that you made an application to amend which was not dealt with by this Court”. Lady Justice Arden states, “I have not been able to find any documentary evidence of an application to amend following the hearing before Employment Judge Manley.” The reasons go on to refer to the outcome of the claimant’s appeal against Employment Judge Manley ruling that only a claim for a failure to consider reasonable adjustment had been made and further point out that the EAT dismissed the appeal on failure to make reasonable adjustments on the ground that it had not been pleaded and that the claim appeared to have little prospect of success in any event.[18]Having considered the file fully, and the history of this case including the various appeals in this case, I can trace no outstanding application to amend the list of issues in the 2013 Employment Tribunal proceedings brought by the claimant and in all the circumstances there is no basis on which I can grant any application to amend.[1]The claimant did not attend the hearing. By email dated 14 September 2018 Mr Ukegheson stated that he would not be available until the end of November 2018 and could not attend a hearing on 25 October 2018. He explained that he was organising a peace project in Nigeria in his capacity as the inaugural President/Chairman of the Board of Trustees of the Niger Delta Student Association of the Nigerian Law School Sixth Campus. He stated that he needed to be “on ground to supervise the last stages of the event”.[2]Order 9 of the orders referred to above required that if Mr Ukegheson was unavailable on the 25 October 2018 he provide all necessary documentary evidence which supported his non-availability, such as confirmation of travel bookings, no later than 11 September 2018. No such information was provided with his email of 14 September 2018. I treated his email of 14 September as an application to postpone the hearing listed for 25 October 2018. On my direction a letter was sent to the parties by the Tribunal on 13 October. The letter stated as follows: “The application for a postponement of the preliminary hearing listed for 25 October 2018 is rejected. He has not provided any documentary evidence to support his statement that he cannot attend the hearing before 1 July 2019 other than documents relevant to a potential Presidential campaign in Nigeria. The preliminary hearing remains listed for 25 October 2018 in order to determine the preliminary issues previously identified by the Tribunal as confirmed at paragraph 3 of the orders sent to the parties on 5 September 2018.”[3]At the start of the hearing on 25 October I checked with the respondent whether the respondent had received any further communication from the claimant. There are extensive delays at present in the linking of correspondence received at the Watford Employment Tribunal with the relevant files and I wanted to ensure that I was aware of all and any relevant correspondence before beginning the hearing.[4]I was provided with a copy of an email exchange which started on 10 October 2018 between the claimant and Ms Jo Beill, senior lawyer of the respondent and responsible for these proceedings on behalf of the respondent. In answer to Ms Beill’s enquiry to the claimant of 10 October asking whether he would be serving a witness statement or any written argument for the Preliminary Hearing on 25 October the claimant said he did not intend to use a witness statement “as it is purely a jurisdiction issue based on the point of law….I will send my written arguments/submissions before the hearing date.” By email dated 12 October 2018 Ms Beill commented on the claimant’s reference in his email of 11 October to a hearing bundle explaining that would be no trial bundle, only exhibits to statements or written arguments, and that if the claimant wished to refer to any documents not already enclosed in the respondent’s disclosure he needed to disclose them, pointing out that the earlier Tribunal order required an exchange of witness statements by 11 October (and not for one party to send to the other in advance) . The email went on to explain that the reason why the respondent was serving a brief witness statement was because Mr Ukegheson had raised an issue of fact regarding any contact that the respondent had had with ACAS in connection with the 2015 claim. Finally, she confirmed that the respondent was content to delay exchange of statements or written arguments until the 16 October if the claimant needed more time.[5]In the absence of any further communication from the claimant on 16 October Ms Beill wrote to him by email pointing out she had not received a response from him, that correspondence had been received from the Tribunal dated 13 October which had rejected the claimant’s application for postponement of the preliminary hearing on 25 October and she attached her witness statement to her email.[6]The claimant responded to that email on the same day stating “I was not aware the Tribunal had made a decision rejecting my application for a postponement of the hearing”, stating that he would serve by email his response by Thursday 18 October 2018 and finally asking if the Tribunal’s letter of 13th October rejecting a postponement of the 25 October hearing could be forwarded to him. On 16 October at 13.43 Ms Beill emailed a copy of the Tribunal’s letter of 13th October to the claimant.[7]On 18 October he sent to the Employment Tribunal and to the respondent his written submissions together with a copy of the Response prepared by the Department for Business Innovation and Skills, dated July 2013, to the consultation on proposals for the implementation of Early Conciliation. There is no trace of that email on the Employment Tribunal file and his submissions were not on my file. I was provided with copies by the respondent and there was a short adjournment whilst I read those submissions.[8]After that adjournment I heard evidence on oath from Ms Beill, solicitor and senior lawyer employed by the respondent and responsible for these proceedings from April 2017.[9]The claimant’s employment with the respondent ended in January 2013. The claims brought in case number 3302569/2015 are of post-employment victimisation. The second proceedings in case number 3302570/2015 presented on the 12 August 2015, are also claims of post-employment discrimination.[10]The claims were lodged on or after 6 May 2014. In claim number 3302569/2015 in answer to the question why no ACAS early conciliation certificate number is given the claimant has ticked the box to the answer “ACAS does not have the power to conciliate on some or all of my claim”. In claim number 3302570/2015 in answer to the question why no ACAS early conciliation certificate number is given the claimant has ticked a box to rely on the answer “My employer has already been in touch with ACAS”.[11]The claims of post-employment victimisation are proceedings that arise under the provisions of S.108 of the Equality Act 2010, that is relationships that have ended and S.120 of the Equality Act 2010 provides an Employment Tribunal with jurisdiction to determine a complaint in relation to a contravention of S.108(S.120(1)(b)). Section 18A of the Employment Tribunals Act 1996 (“ETA”) provides that “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”. Relevant proceedings are defined in S.18(1)(e) as including proceedings under S.120 of the Employment Act 2010.[12]The evidence given of Ms Beill on behalf of the respondent is that she took over conduct of this case on behalf of the respondent in 2017. Prior to that her colleague Edmund Jankowski, a Senior Lawyer employed by the respondent, had the conduct of defending the two claims brought in 2015. Ms Beill produced several emails from the respondent’s correspondence file. The first was an email from Anna Redmond, ACAS conciliator, to Mr Jankowski on 12 October 2015 with a heading of case number 3302569/15 and details of the parties. It reads; “Dear Edmund, I am the ACAS conciliator dealing with this matter. If you wish to make an offer to settle and discuss the case, please do give me a call. I look forward to hearing from you.”[13]On the same day Mr Jankowski replied with the heading of the case and the case number quoted by the ACAS conciliator, 3302569/2015. His email reads: “Dear Anna, are you also dealing with case number 3302570/2015? Could you confirm/provide/obtain for case number 3302569/2015 (and for case number 3302570 if you are also dealing with that case) the date (if any) on which ACAS received the early conciliation form from Mr Ukegheson or the date (if any) he contacted ACAS by telephone for early conciliation.”[14]The reply from Miss Redmond by email of 13 October 2015 reads as follows: “Dear Edmund, I am dealing with both ET claims. There is no record on our system of early conciliation claims for either case. Kind regards.”[15]On 18 July 2018 Miss Beill wrote to ACAS quoting case numbers 3301502/2013, 3302543/2013, 3302569/2015 and 3302570/2015 requesting confirmation as to whether the claimant had entered early conciliation for the 2015 claims.[16]The response from Ms Redmond stated, “Unfortunately, due to data protection I am not allowed to divulge that information. You should contact the Tribunal and they may be able to help you further.”[17]The other emails I was directed to were emails from the claimant to ACAS London copied to others, including the respondent, dated 16 September 2015. The emails were identical save for the time on which they were sent, 12:43 and 12:45, and a reversal of the list of addressees cc’d.[18]The key part of that email from the claimant to ACAS reads as follows: “Do I need a certificate from ACAS? On 13 June 2015, I got a full-time job as a registered manager and my new employers requested reference from Haringey Council, but they refused to send a reference and kept on giving excuses. When eventually sent, they failed to provide all relevant answers. My new employers became worried and started calling me at intervals and sending emails to chase up the reference. I did but they still waited until 14 July before they finally gave me the reference. But because the reference is not “factual” it was delayed unnecessarily, I have now lodged another ET1 in August 2015 which has now been accepted on 7 September 2015. Giving the circumstances that the case has been on-going since 2013, I have requested that all the cases be consolidated. It has been suggested that I may need an ACAS certificate for the new claim and the PHR is coming up on 7 October 2015. I am not sure if I will need the ACAS certificate but there is no harm in getting one. Considering that Haringey Council did not engage in conciliation in 2013 and has not made any attempt to contact you since 2013, I form the belief that they are not interested in any form of conciliations or whatever else ACAS has to offer. Whilst I am open to negotiations, I would not want you to chase them please as I am not prepared to beg them like I did in 2013. It is my belief they are fully prepared to fight the legal battle and so I have conditioned my mind to fight to the very end. However, I will need a certificate from ACAS to show that you have contacted Haringey Council and that they have declined further communications, so I can present it to the Employment Tribunal whenever my case comes up for hearing.”[19]At no time has the claimant obtained an ACAS early conciliation certificate in respect of either case number 3302569/2015 or 3302570/2015. The only documentation before me today evidencing communications between either party and ACAS are the emails referred to at paragraphs 4 to 11 above. The parties’ submissions[20]It is the claimant’s case he contacted ACAS when the question arose of a requirement to comply with the early conciliation provisions in 2015, his email of 16 September 2015. He submits “The respondent has copies of the emails which they now have presented as exhibits. A fair reading would show that the claimant had complied with the requirements for early conciliation as the added claim was merely an amendment of the existing claim that started in 2013 and not a new course of action. It is this understanding that he applied for consolidation of the additional claim with the existing claims of 2013.”[21]He goes on to argue that it makes no difference that ACAS did not issue an early conciliation certificate, the purpose of S.18A of the Employment Tribunals Act 1996 being to encourage parties to resolve issues as early as possible without the need for Tribunal hearings and that in the present case the claimant did initiate several proposals for conciliation using ACAS but the respondent declined, neglected or refused to act on the olive branch offered by the claimant. No evidence of any such communications has been put before the Tribunal.[22]He further submits that “The just and equitable way the Tribunal should proceed would be to allow the post victimisation claims to proceed to full hearing of all the relevant facts as it has now been consolidated with other cases.” He goes on to say, “the claimant respectfully invites the Employment Tribunal to hold that because the claims are related to an existing claim, the new claim is just an amendment of the existing claim and does not constitute a new course of action hence the order to consolidate with the previous case.”[23]It is correct that on 6 October 2015 all claims were consolidated and stayed given applications from both parties to that effect pending conclusion of the outstanding appeal process in relation to the 2013 claims. That consolidation did not determine the jurisdictional issue in relation to the 2015 proceedings, which had been raised by the respondent in the responses to both the 2015 claims when those responses were served in 2015. A preliminary hearing was accordingly listed to determine the question of jurisdiction in the 2015 proceedings and was for hearing on 7 October 2015, but that hearing was postponed pending the conclusion of the appeal process.[24]In proceedings 3302570/2015 the claimant argues that his employer was in touch with ACAS about the dispute, which appears to be an argument that the 2015 proceedings fell within the scope of the exemption from early conciliation under Regulation 3(1)(c) of the Employment Tribunal ( Early Conciliation: Exemptions and Rules of Procedure ) Regulations 2014 , “A 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 ETA in relation to that dispute, and the proceedings on the claim form relate to that dispute;”.[25]In his submissions the claimant appears to argue points that would normally be argued on an amendment application. He states at paragraph 5 “The claimant respectfully invites the Employment Tribunal to hold that because the claims are relating to an existing claim, the new claim is just an amendment of the existing claim and does not constitute a new course of action hence the order to consolidate with the previous case.” He invites the Tribunal to apply Selkent Bus Co Ltd v Moore and argues that under certain circumstances a Tribunal can allow an addition of post victimisation claim to an existing claim where there is no early conciliation certificate for such a claim and refers the Tribunal to Science Warehouse Ltd v Mills [2016] IRLR 96. He argues that the post-employment victimisation claim arose from the existing claim already before the Tribunal which is why he sought clarification from ACAS in September 2015 as to a necessity or relevance of an early conciliation certificate.[26]The respondent argues that the claimant’s reliance upon Regulation 3(1)(c) of the 2014 Regulations must fail because the only contact the respondent had with ACAS in respect of the 2015 dispute was after the relevant claims had been presented and that contact was limited to ask whether ACAS had issued an early conciliation certificate.[27]With reference to the claimant’s implied application for an amendment of the 2013 proceedings the respondent makes several points. The first point is that there is no application to amend before the Tribunal today. The respondent’s case is that the Tribunal clearly listed this matter to determine the jurisdiction point under the Regulations. However, if the Tribunal were to be considering an application to amend the 2013 proceedings the respondents submits that it is far too late to do so. The claimant chose to present new claims in 2015. He could at that stage made an application to amend the 2013 claim but chose not to do so. To permit an amendment now is far too late applying Selkent principles. Turning to the claimant’s reliance on Science Warehouse and Mills the respondent makes a distinction between the facts of that case where proceedings had already been issued and an early conciliation certificate had been obtained and the regulations complied with , compared to the current position where the 2013 proceedings pre-date the introduction of Early Conciliation and accordingly there is no Early Conciliation Certificate in the 2013 proceedings which could be relied on in the 2015 proceedings. Mr Davis for the respondent submits that in those circumstances Science Warehouse and Mills does not assist the claimant and that he now seeks an amendment to avoid having to comply with the regulations.[28]Finally, Mr Davis says that no good reason is advanced in the claimant’s written submissions as to why he did not apply to amend the 2013 proceedings in 2015 but presented new claims.
Conclusions
[29]The first point I have to consider is whether the Early Conciliation Regulations apply to these post-employment claims of victimisation. I am entirely satisfied that they do applying the legislative analysis contained in paragraphs 3 above.[30]The next question I have to consider is whether the claimant has shown that he is entitled to the benefit of the exemption contained in Rule 3(1)(c). It is correct that there was contact between the respondent and ACAS and I refer to the email form the respondent set out at paragraph 5 above. That contact was on the 12 October 2015 after the 2015 claims had been presented. Does that amount to the respondent having “contacted ACAS in relation to a dispute?” Certainly there was contact with ACAS. However, the contact was to query as to whether the early conciliation regime had been complied with by the claimant. The email from the respondent did not provide or contain any details of the dispute. The thrust of the regulations is to encourage parties to resolve their differences without Employment Tribunal proceedings being necessary and in my view an enquiry as to the claimant’s compliance or otherwise with the regulations, following the presentation of a claim and its service upon the respondent, does not amount to a situation where the respondent “has contacted ACAS in relation to a dispute”.[31]However, there is a further hurdle for the claimant to overcome applying the wording of Regulation 3(1) provides “A person (“A”) may institute relevant proceedings without complying with the requirements for early conciliation where” and then follow the exemptions, including Regulation 3 (1) (c). Any contact the respondent has with ACAS must therefore be prior to the institution of those relevant proceedings. In this case the respondent’s contact with ACAS quite clearly post-dates the presentation of the proceedings. If contrary to my view, the respondent’s enquiry of ACAS amounted to contacting ACAS in “relation to a dispute” it could not provide an exemption from early conciliation for the claimant unless that contact had occurred prior to the institution of relevant proceedings. It did not.[32]In all those circumstances the claimant has not shown that he has the benefit of an exemption from early conciliation and clearly accepts on his own submission that he had not complied with the requirements of the Early Conciliation Regulations by obtaining Early Conciliation Certificates in relation to both the 2015 proceedings. Accordingly, I must dismiss the claims because the claimant has not complied with the requirement of Regulation 18A of the Employment Tribunals Act 1996 in contacting ACAS before instituting proceedings.[33]I have gone on to consider the arguments raised by the claimant about amendment. As previously stated there is no application to amend by the claimant before me today. If I am mistaken in my understanding of his written submissions provided to the Tribunal today and if what is said in those submissions is that he now seeks to amend the 2013 proceedings to add claims of post-employment victimisation then in my view applying Selkent principles any such application must fail. I come to that view for a number of reasons. The first reason is that the claimant expressly chose to present new claims in 2015. He could have sought to apply to amend the 2013 claims but chose not to. He cannot argue the 2015 proceedings are within the factual background set out in the 2013 proceedings, and that allowing the amendment is simply a relabelling exercise. The 2015 claims are specifically about post-employment discrimination which allegedly arose in 2015 some time after the 2013 events and the end of the claimant’s employment.[34]Secondly, there is a very long delay in now making an application to amend over 3 years after the 2015 claims were originally presented and the jurisdictional point raised promptly bey the respondent in the responses to those claims. To grant an amendment after this length of time would be to drive a coach and horses through the clear failure by the claimant to comply with the Early Conciliation Regulations in permitting his claims to proceed via a different route, a route that was open to him to take in 2015 but which he chose to not to take but presented new claims. He was aware of the jurisdictional issues in the 2015 proceedings from September of that year when the Tribunal first listed a preliminary hearing to consider whether there had been compliance with the requirements of Early Conciliation. Both parties wanted the claims stayed whilst the appeal proceedings progressed. The consolidation did not, and could not, determine the jurisdictional validity of the 2015 proceedings. That was always going to have to be dealt with at a preliminary hearing. The consolidation simply kept all matters together for administrative simplicity pending conclusion of the appeal process.[35]For all those reasons the claims in the 2015 proceedings of postemployment victimisation must be dismissed because in the absence of compliance with the Early Conciliation Regulations the Tribunal has no jurisdiction to deal with them and had the claimant had brought an application to amend applying Selkent principles the application would be unsuccessful on the facts of this case.