Mr D Allen v Ringway Infrastructure Services Ltd: 3313723/2021
EMPLOYMENT TRIBUNALS
Case No 3313723/2021
Between
Mr D AllenClaimantRingway Infrastructure Services LtdRespondent
Before
Employment Judge BoyesDr G. Allen for claimantMr J. Wynne (instructed by counsel) for respondentDate 3 March 2023
JUDGMENT
[1]The Claimant’s claim made on 20 July 2021 is rejected under rules 12(1)(c) and 12(1)(d) of The Employment Tribunals Rules of Procedure (Schedule 1 to The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013). This is because the claim form does not contain an Early Conciliation Certificate number and is made on a claim form which contains confirmation that one of the Early Conciliation exemptions applies, whereas an Early Conciliation exemption does not apply.[2]The Tribunal therefore has no jurisdiction to determine the Claimant’s unfair dismissal claim. 20 April 2022
REASONS
[1]The Claimant lodged a claim for unfair dismissal with the Tribunal on the 20 July 2021. An open preliminary hearing was listed to determine whether the Tribunal had jurisdiction to deal with the claim. The issue of jurisdiction arose in respect of whether or not the Claimant had complied with the Early Conciliation requirements.[2]Judgment and summary oral reasons were given at the hearing on the 8 April 2021. These full written reasons are now provided at the Claimant’s request.
The Hearing
[3]I indicated that it would be helpful to hear evidence from the Claimant. This was because it was not clear to me, on the basis of the documentary evidence before me, of the provenance of the first of the two reference numbers included on the claim form (R150862/21). It was necessary for me to make findings of fact in this respect to enable me to consider the proper application of rule 12 of The Employment Tribunals Rules of Procedure Procedure) Regulations 2013) (“the ET Rules of Procedure”).[4]I asked the Claimant questions in order to establish his evidence. He was then cross examined by the Respondent.[5]The Respondent and Claimant made closing submissions. I gave Dr Allen some latitude in closing submissions during which he, in effect, gave evidence regarding his involvement in completion of the claim form. In providing him with that latitude, I had regard to the overriding objective, the interests of justice and the fact that Dr Allen is not legally qualified and so could not be expected to appreciate the, sometimes subtle, distinction between submissions and evidence. I reserved my decision.
Findings of Fact
[7]Where there is no dispute between the parties as to a particular fact, my findings of fact are recorded below without any further explanation. Where the facts are not agreed by both parties, I have explained why I prefer one party’s account over the other. Where the facts are not clear, I have explained why I have made the finding of fact concerned.[8]Mr Allen worked as a road operative for the Respondent. His employment began on 1 October 2015. He continued in that employment until 22 April 2021 when he was dismissed.[9]The Claimant initially instructed solicitors to advise him. They told him he had to wait for an ACAS form. However, instead of paying the solicitors to submit the claim, he subsequently decided to deal with the claim himself with the help of Dr Allen, his brother. ACAS were contacted on 28 June 2021 in connection with early conciliation. The Claimant explained in live evidence that he could not recall who first contacted ACAS in this respect.[10]The first Early Conciliation certificate (“the first certificate”) was subsequently issued on 29 June 2021. The reference number on that certificate is R150862/21/42 [24].[11]The Claimant was asked if he received the first ACAS certificate at some point after the 29 June 2021 and he replied that it was possible but he could not state that as a fact.[12]ACAS were again contacted on 19 July 2021. An acknowledgement was issued by ACAS on the same date [4]. The reference number R156857/21 is included in that acknowledgment.[13]On 20 July 2021, the Claimant completed the claim form, with the assistance of Dr Allen and lodged it with the Tribunal.[14]The Claimant was asked in cross examination whether he had the first Early Conciliation certificate before he submitted his claim. He replied that he was unaware of the certificate when the ET1 was sent in. He and his brother were debating which reference number to use. He believed that he obtained the reference R150862/21 in an email from the solicitors he had previously instructed. He gave both references (R150862/21 and R156857/21) to his brother as he was not sure which one was relevant. They put both reference numbers on the claim form to provide clarity because it was a muddle.[15]Section 2.3 of the form the box is ticked to say that the Claimant does not have an Early Conciliation certificate [9]. The form then goes on to ask why no certificate number is provided. The Claimant ticked the box to indicate that his employer had already been in touch with ACAS [9]. This was incorrect. Later in the form, at section 8.2, two ACAS reference numbers are given [14]. The reference included were R150862/21 and R156857/21.[16]Dr Allen explained at the hearing that he had not, at the point that the claim form was completed, had sight of the early conciliation certificates, so he did not have the certificate numbers. As he had not seen the certificates, he did not know what the numbers were. In terms of the reference number R150862/21, he could not recall how he had obtained it, but he thought he may have obtained it over the telephone from the Claimant.[17]Having heard evidence from the Claimant, supplemented by what was said by Dr Allen in closing submissions, it was clear that neither of them had the first certificate in their possession at the point when the claim form was completed and submitted to the Tribunal.[18]I am fortified in this view by what is said in the e mail of the 18 October 2021 from Dr Allen to the Respondent’s solicitors and the Tribunal [43]. It includes the following, “(By means of background I contacted ACAS on 19th July (reference R156857/21) being unaware that ACAS had already been approached on the matter via solicitors and ACAS had already issued their certificate (R150862/21) on 29th June 2021. A note was added to form RT1 [sic] to this effect providing both ACAS numbers).”[19]It is clear from what is said in that email that Dr Allen was not aware just prior to when the claim was lodged that ACAS had issued a certificate on the 29 June 2021.[20]On the evidence before me, I find as a fact that neither the Claimant nor Dr Allen looked at the first certificate or obtained the reference number from it at the point that the claim form was completed and lodged. I find as a fact that the reference numbers contained at section 8.2, of the claim form were ACAS reference numbers. They were not ACAS Early Conciliation certificate numbers. The reference numbers included on the form differ from the Early Conciliation certificate reference numbers because the final two digits are missing. In the case of the first certificate, ‘/42’ is missing.[21]They cannot have been the Early Conciliation certificate numbers because, on the facts as I find them, neither Dr Allen nor the Claimant had had looked at the first Early Conciliation certificate at the time when the claim form was submitted.[22]The Claimant stated that he did not know why the exemption box had been ticked at section 2.3. On 14 March 2022, Dr Allen wrote to the Tribunal by email to explain why an exemption had been claimed at section 2.3. He stated: “If the form is submitted online (as in this case) on page 5 of 11 the question is asked whether you have an ACAS Certificate. If you answer YES, then the certificate number MUST be added to progress to page 6. If you answer NO, then one of the four options MUST be selected to progress to page 6. The only option available to me to progress the form to page 6 therefore was to select NO and choose the option most relevant. The alternative to online submission is to complete the PDF form and send by post to the appropriate centre (details can be found online). Post was not an option in this case due to time constraints.”[23]It was apparent from the evidence that I heard, and from the manner in which the form was completed, that there was confusion on the part of the Claimant and Dr Allen as to what exactly was required in so far as early conciliation was concerned. Those difficulties were compounded by the way in which the fields have to be completed on the electronic claim form. I do not consider that there was any dishonesty or attempt to mislead the Tribunal by either the Claimant or Dr Allen when completing the form in the manner that they did.[24]On the 21 July 2021, ACAS issued the second Early Conciliation certificate with the number R156857/21/19 (“the second certificate”) [22 & 25]. In the email enclosing the certificate it states “Your certificate is number is R156857/21/19. If you make a Tribunal claim you must use this number in full. If you do not use the full number above, including the last two digits, your claim may be rejected by the tribunal.”[25]On 6 September 2021, the Tribunal wrote to the Claimant asking for clarification regarding the answers given in the claim form about any Early Conciliation certificate. It was pointed out that the reference numbers provided were not complete ACAS Early Conciliation certificate numbers. The Tribunal requested a copy of the ACAS Early Conciliation certificate(s). On the same date, Dr Allen provided the Tribunal with both certificates.[26]The Tribunal office acknowledged the claim on 22 September 2021.[27]The ET3 and Respondent’s response was filed on 18 October 2021. The Respondent stated that contrary to what was said in the claim form, the Claimant was not exempt from providing an Early Conciliation certificate. This was because the Respondent had not contacted ACAS in relation to the dispute. The Respondent submitted that proceedings were issued prematurely, that the Tribunal had no jurisdiction to determine the claim and therefore that the claim should be rejected.[28]There was then subsequent correspondence between the parties regarding the issues arising as to jurisdiction.[29]On 11 November 2021, the Tribunal wrote to the Claimant and confirmed that the ET3 had been received and the matter had been passed to an Employment Judge.[30]On 12 November 2021, an Employment Judge directed that the case be listed for a preliminary hearing to determine whether the Tribunal had jurisdiction.
The Relevant Law
[31]The basis of the Early Conciliation scheme is set out at sections 18A and 18B of the Employment Tribunals Act 1996 (“ETA”), and in the Early Conciliation Rules of Procedure (‘the EC Rules’) contained in the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254 (as amended).[32]If either party does not wish to engage in conciliation, or if settlement is not reached within the applicable timeframe, then ACAS will issue an early conciliation as evidence that section 18A(1) of the ETA has been complied with.[33]Rules 10 and 12 of The Employment Tribunals Rules of Procedure Procedure) Regulations 2013) (“the ET Rules of Procedure”) set out certain ‘technical’ and ‘substantive’ grounds on which a claim (or part of a claim) will be rejected. Rules 10 and 12 are as follows: Rejection: form not used or failure to supply minimum information 10.-(1) The Tribunal shall reject a claim if[…] (c)it does not contain one of the following— (i)an early conciliation number; (ii)confirmation that the claim does not institute any relevant proceedings; or (iii)confirmation that one of the early conciliation exemptions applies. (2) The form shall be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for a reconsideration of the rejection. […] Rejection: substantive defects 12.—(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 an abuse of the 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, 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; (da) one which institutes relevant proceedings and the early conciliation number on the claim form is not the same as the early conciliation number on the early conciliation certificate; (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). (2ZA) The claim shall be rejected if the Judge considers that the claim is of a kind described in sub-paragraph (da) of paragraph (1) unless the Judge considers that the Claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim. (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 an 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 a reconsideration of the rejection. 34. ‘Early conciliation number’ as referred to in rule 12 is, as per rule 1, to be interpreted as “the unique reference number which appears on an early conciliation certificate”.[35]Cases involving the failure to include an early conciliation certificate number in the ET1, in full or in part, have been considered by the Employment Appeal Tribunal on several occasions. However, many of these cases predate the amendment of the Employment Tribunal Procedure Rules on the 8 October 2020. On that date rules 12(da) and 12 (2ZA) were inserted by The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020). I have borne that change in mind when applying the principles in those cases to the facts in this case.[36]In Adams v British Telecommunications Plc UKEAT/0342/15/LA, Mrs Justice Simler held that if the required minimum information is not provided within the form, the Tribunal has no option but to reject the claim unless that omission is capable of being excused by some other rule.[37]In E. ON Control Solutions Limited v Caspall [2020] ICR 552, HHJ Eady (as she was then) held that a failure to include an accurate Early Conciliation certificate number fell within the scope of Rule 12(1)(c) and that, in such circumstances, a Tribunal was required to reject claims where such an inaccurate number was included in the form. Further rule 6 of the ET Rules of Procedure does not provide confer discretion to an Employment Judge to disregard a mandatory rule.[38]In the case of Ash v. ISS Facility Services Limited UKEAT/0098/20/00, the claim was rejected by the Employment Judge because the Claimant did not include an Early Conciliation certificate number on his claim form. Instead, he ticked a box to indicate that an exemption to having a certificate applied in his case. The claimant had in fact obtained a certificate prior to issuing his claim but had sent it to the Respondent and a copy had not been retained on his form. The copy sent to the Respondent had gone into an email ‘junk’ folder. He then requested a copy of the certificate but he was instead issued with a second certificate. In dismissing the claimant’s appeal, the EAT held that the Employment Judge had no option but to dismiss the claim and did not err in law. In doing so HHJ Tucker stated that: “34. These provisions [rules 6, 10 and 12 of the ET Rules of Procedure] have been considered in a number of cases. Those authorities have established that the use of the word “shall” in Rule 12(1) and (2) denotes that the effect of the rule is mandatory and that there is no discretion in its application. See per Langstaff P in Cranwell F v Cullen UKEATPAS/0046/14/SM. In that case, the EAT held that there was no discretion to waive a failure to include an EC number or the erroneous claim that an exemption applies (i.e., the circumstances described in rule 12(1)(c) or (d)); that was the effect of the rule. In Adams v British Telecommunications Plc [2017] ICR 382, Simler P. considered the provisions of Rules 12. She noted that Rule 12(2)(a) provided an escape route for some minor errors in compliance within the EC rules relating to names and addresses of employers (as a Judge had a discretion not to reject the claim if it was not in the interests of justice to do so) but that a minor error in relation to the EC number itself is not capable of being corrected in the same way. She stated (paragraph 7) that, “It is difficult to see any justification for this distinction. None was advanced by either counsel and I cannot identify any. Both are minor errors but no escape route is provided for the certificate number errors.”
Conclusions
[39]The Claimant had contacted ACAS prior to issuing proceedings and an Early Conciliation certificate was issued by ACAS. Substantively, he had therefore done what was required of him under section 18A of the ETA, that is to undertake the early conciliation process.[40]Some confusion arose about how to complete the section of the claim form (ET1) that relates to early conciliation. I accept the explanation as to why the form was completed in the manner that it was.[41]However, I am required to have regard to rules 10 and 12 of the ET Rules of Procedure. They set out certain technical and substantive grounds on which a claim may be or must be rejected.[42]Two issues arise in this case in relation to those rules. The first is that whilst two reference numbers were provided in the claim form, these were not early conciliation certificate reference numbers. The second is that it is stated in the claim form that an exemption applied when in fact no exemption did apply.[43]Dr Allen submitted that the Tribunal had, by serving the ET1 upon the Respondent, in effect, accepted the claim and so had accepted that the requirements of the rules were met.[44]It is notable that rule 12 requires that the Tribunal office refer any potential application of rule 12 to an Employment Judge for consideration. Given that the actual position was far from clear on the face of the claim form in this case, it would have been wholly inappropriate for the Tribunal office to reject the claim form under rule 10 without first referring the matter to an Employment Judge for consideration.[45]The matter was referred to an Employment Judge on the 11 November 2021 for further consideration. On the 12 November 2021 an Employment Judge directed that the matter be listed for a preliminary hearing to determine the jurisdictional point in issue.[46]Further, whilst the claim form was not rejected at an earlier stage, and was served upon the Respondent, this does not and cannot confer jurisdiction where jurisdiction otherwise does not exist.[47]I turn now to the application of rule 12 on the facts of this case. I have found as a fact that the earlier reference number cited at section 8.2, that is R150862/21, was not an Early Conciliation certificate number. It could not have been because the evidence before me is that neither the Claimant nor Dr Allen had a copy of the first certificate before them when the claim form was completed.[48]Rule 12(2) requires that a claim shall be rejected if 12(1)(c) applies. 12(1) (c) applies, inter alia, if the form does not contain an early conciliation number. An ‘early conciliation number’ is defined as “the unique reference number which appears on an early conciliation certificate”. The reference R150862/21 was not obtained from the Early Conciliation certificate. It is therefore not such a number. The reference R156857/21 also cannot have been obtained from an early conciliation certificate. This is because this second certificate was only issued until after the claim had been lodged with the Tribunal. Rule 12(1)(c) therefore applies in this case.[49]Rule 12(2ZA) confers some discretion in a case where rule 12(1)(da) applies, that is that the Early Conciliation number on the claim form is not the same as the Early Conciliation number on the Early Conciliation certificate. This does not apply in this case because an Early Conciliation number (defined as the unique reference number which appears on an early conciliation certificate) was not included in the claim form. Rather rule 12(1)(c) applies. No discretion is given under the rules in relation to rule 12(1)(c).[50]Therefore, as rule 12(1)(c) applies, I am required to find that the claim form must be rejected. I have no discretion to decide otherwise.[51]In Ash v. ISS Facility Services Limited, HHJ Tucker observed that whilst the aim of the statutory regime, and the linked procedural rules, was to ensure that would be litigants conciliate certain disputes before issuing proceedings, an unfortunate consequence has been that it has created more litigation. At paragraph 27 she observed that: “Not only is that precisely the opposite of what the legislation sought to do, but in some cases, if there is no judicial discretion to mitigate the effect of the rule in an appropriate case, there is a risk that mandatory procedural rules lead to harsh and, potentially, unjust results. It is difficult for rules to make provision for all the many, different factual circumstances which make their way before the Courts in disputes between litigants. Strict procedural rules, and adherence to them, have an important role to play in the administration of justice: they are part of a process through which litigation can be fairly managed, and managed in the interests of justice for all. However, strict procedural rules which serve to limit access to a court or tribunal without determination of the underlying dispute, and where no judicial discretion exists for an exceptional circumstance, or a wholly unforeseen situation, are particularly susceptible to that risk, namely of leading to a harsh, and potentially, unjust result.”[52]Regrettably, in this case, the application of the ET Rules of Procedure leads to a harsh outcome. Despite this Tribunal is required to apply the law that it is bound by in this case. RECONSIDERATION
Conclusions
[1]The factual background to this case can be found the Tribunal’s Judgment and full written reasons which have been provided to the parties separately. I therefore do not repeat the factual history here.[2]In an email dated 5 May 2022, the Claimant sought reconsideration of the Judgment.[3]The grounds for reconsideration can be summarised as follows: i. The Judgment is wrong and should be reconsidered because the claim form did contain the ACAS Early Conciliation certificate number(s) within box 8.2. The fact that the number missed the two final characters was a genuine error, should not lead to the claim being rejected and would not ordinarily under the rules now in place. Whilst there was a contradiction in what was said in the claim form in that an exemption was claimed, the Claimant provided clarification to the Tribunal office on the 7 September 2021 by providing a copy of one of the ACAS certificates. ii. It was apparent by 7 September 2021 that the contradiction on the ET1 form was not a fatal error. The claim had not been rejected under Rule 10(1) or 12(2) because the ET1 form had not been returned to the Claimant with a notice of rejection with information about how to apply for a reconsideration of the rejection as required under Rules 10(2) or 12(3) respectively. The Tribunal office accepted the Claimant's clarification and subsequently confirmed in writing to the Claimant that the claim had been accepted and the claim was duly served on the Respondent. iii. The original inconsistency in the ET1 form and the error in not including the 3 characters from the ACAS certificates was not a fatal error and had been rectified by complying with the Tribunal's request for the certificate numbers. This should have been sufficient for the claim of unfair dismissal to progress. iv. The Judgement issued on 26 April refers to the rejection of the claim under rules 12(1)(c) and 12(1)(d). However, Rule 12(1) relates to Tribunal staff referring a claim to a Judge under certain circumstances and does not mention the word rejection. v. Rule 12(2) refers to the rejection of a claim under certain conditions (in 12(1)). Rule 12(2) requires that the Employment Judge ‘consider’. The ordinary meaning of the word in rule 12(2) requires the exercise of judgement and not simply an obligation to act arbitrarily, which could be read from the word ‘shall’ if it were present in rule 12(2) in isolation. If it is determined that the Tribunal does not have jurisdiction to accept the claim by reference only to the word ‘shall’ and not the word ‘consider’ in 12(2) then the rule has been incorrectly applied. vi. The Employment Judge should have assessed whether the Claim Form confirms clearly and unambiguously that 12(1)(d) applies when it did not. Had the Claimant completed 2.3 without providing ACAS Early Conciliation Certificate number(s) the conclusion that the Tribunal did not have jurisdiction would have been correct. However, the Claimant also entered unambiguous information that ACAS had been contacted and provided the ACAS numbers in compliance with the rules. Where this was followed by the provision of a full ACAS Early Conciliation certificate, and the Claimant's subsequent submissions confirming that box 2.3 was completed incorrectly, then the correct determination should have been that the ET1 form did not confirm that one of the early conciliation exemptions applied and the Tribunal did have jurisdiction to determine the Claimant's claim of unfair dismissal. vii. If it is determined that the judgment was in accordance with Rule 12(2), then rejection should be dealt with under Rules 10(2) or 12(3) which states that 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 a reconsideration of the rejection. The Judgment made on 26 April in accordance with Rule 12(2) does not appear to comply with the following Rule 12(3) "…the form shall be returned …." as the form has not been returned to the Claimant in the prescribed manner. viii. The Tribunal court has and retains full jurisdiction in particular under Rules 2, 5, 8, 10, 12, 13, 70 and 71. ix. The overriding objective should be applied when undertaking the reconsideration request. This matter is not currently being dealt with on an even footing. The Claimant and representative are lay people who have never submitted such claims to an Employment Tribunal in the past and the Respondent is a large organisation with huge resources and has employed a firm of solicitors and counsel to represent them. In view of this, discretion should be exercised in favour of the Claimant and the important safeguards within Rules 10-14 for the Claimant (and 17 to 20 for the Respondent) should be used accordingly in this case. x. The issue, in this case, is one of a contradiction on a form and a missing ‘/19’ from a reference number that was rectified (at the request of the Tribunal) by the Claimant but the rectification was not accepted by the Respondent. The level of involvement in both time and resources spent on deciding whether the form had been corrected, or can now be corrected, does not appear proportionate to the issue under review. In the alternative, the original ET1 form was corrected on 7 September 2021 (by supplying ACAS certificate number) so that it does not need to be rejected.[4]The Claimant asserts that the claim form did contain the ACAS Early Conciliation certificate number(s). I found as a fact on the basis of the evidence before me that it did not contain any such Early Conciliation certificate numbers. Rather, I found that what it contained was ACAS reference numbers. This is not the same as the certificate number which must be the reference number taken from the ACAS certificate. It was perfectly clear from what was said by the Claimant and his representative at the hearing, and from other documentary evidence before me, that they did not have a copy of the first certificate at the point when the ET1 was completed and lodged with the Tribunal. As they did not have the certificate at that point, they could not have provided the reference number from the certificate.[5]This is therefore not a case in which the number on the ACAS Early Conciliation certificate was wrongly transcribed or a mistake made when copying the number from the certificate. If it had been, then the Tribunal would have had discretion under rule 12(2ZA) to not reject the claim. However, the substantive defect was as per rule 12(1)(c) and not rule 12(1)(da). Discretion under rule 12(2ZA) could therefore not be exercised in this case.[6]Had rule 12(1)(da) applied and the only defect in the claim form been that an exemption had been incorrectly claimed, then it would, possibly, have been arguable that a purposive interpretation to rule 12(1) was required. I say this because 12(1)(d) appears to me to have been included as a substantive defect in order to prevent or discourage the mischief of a potential claimant relying upon an exemption when they are not actually exempt. The rules do not provide for a situation where an Early Conciliation certificate number has been included in the claim form or can be treated as such applying rule 12(2ZA) (thus showing that the early conciliation process has been followed) and at the same time an exemption was claimed. However, I have not reached a conclusion whether or not such a purposive interpretation would be appropriate because rule 12(1)(da) does not apply in this case and so it cannot assist the Claimant in any event.[7]Rule 12(1)(c) applies and so the Tribunal was required to decide that the claim be rejected on that basis. That being so, there was also a substantive defect in the claim under rule 12(1)(d).[8]In terms of the Tribunal’s interpretation of rule 12, rule 12(1) requires that if certain substantive defects are identified in a claim form that the case be referred to an Employment Judge. That is what happened in this case. Rule 12(1)(2) then specifies how the Employment Judge concerned should deal with any such referral. It states that the Judge ‘shall’ reject a claim to which sub-paragraphs 12(1)(a),(b), (c) or (d) applies. Conversely, in respect of sub-paragraphs 12(1)(da), (e) and (f) the Judge has discretion not reject the claim.[9]The reference to ‘considers’ does not alter the meaning of rule 12(2). What 12(2) actually says is that the claim shall be rejected if the Judge considers that the claim is of kind described in sub-paragraphs 12(1)(a),(b), (c) or (d). It requires that the Judge consider whether any of those sub paragraphs apply. It does not confer any discretion upon the Judge to decide that the claim shall not be rejected if any of those sub-paragraphs do apply as is so in this case.[10]Further, it has been established in a line of authorities that the word ‘shall’ in rule 12(1) and (2) denotes that the effect of the rule is mandatory. There is no discretion in its application. [as per Ash v. ISS Facility Services Limited UKEAT/0098/20/00].[11]In E.ON Control Solutions Limited v Caspall [2020] ICR 552, HHJ Eady held that rule 6 of the ET Rules of Procedure did not provide discretion to override a mandatory requirement to reject a claim when there was no express discretion within the terms of the rule concerned. For the same reasons, I do not consider that the terms of overriding objective (rule 2) can confer a discretion in circumstances where another rule, in this case rule 12, is mandatory.[12]In Caspall, HHJ Eady also held that if a case falls to be rejected under rule 10 or 12, that the Tribunal cannot instead exercise case management powers and allow an amendment of the claim form. The correct approach is that the claims should be rejected and then a rectified claim form submitted in reliance upon rule 13.[13]Therefore, even though the Claimant clarified the position with the Tribunal in September 2021, his original claim form still fell to be rejected under rule 12.[14]For those reasons, the claimant’s application for reconsideration made under rules 70 and 71 of the Employment Tribunals Rules of Procedure is not wellfounded and is refused. Acting in accordance with rule 72, I do not consider that the interests of justice require that the Judgment or its Reasons be varied or revoked. There is no reasonable prospect of such variation or revocation. The Judgment and its Reasons are confirmed. JUDGMENT on COSTS Upon consideration of the Respondent’s application for costs made on the 4 May 2022 and determined without a hearing The Respondent’s application for costs is dismissed.
Conclusions
Conclusions
[1]In an email dated 4 May 2022, the Respondent made an application for costs against the Claimant. The costs sought are particularised in a separate schedule. The total sum sought is £13,690.[2]The Claimant has been provided with a copy of this application and has provided submissions in response dated 10 May 2022.[3]The grounds of the application for costs are that: i. The claimant, or the claimant’s representative, behaved unreasonably in both bringing the claim and continuing to prosecute the claim, having falsely claimed without reasonable excuse that one of the Early Conciliation exemptions applied, when no such exemption applied. In this regard the Respondent relies upon Rule 76(1)(a). ii. The claim, as presented, had no reasonable prospect of success. In this regard the Respondent relies upon Rule 76(1)(b).[4]I deal first with the issue of prospects of success because this is relevant not only to the application of rule 76(1)(b) but is also relevant to the assessment of whether the Claimant and/or his representative acted unreasonably in pursuing the matter through to a preliminary hearing.[5]I do not consider that this was a case with no reasonable prospect of success. Whilst the weight of past caselaw was against the Claimant, there had been a change in the Employment Tribunals Rules of Procedure on the 8 October 2020 which provided the Tribunal with discretion in discrete circumstances. It was not possible, without hearing evidence, to establish whether or not discretion could be exercised in this case under rule 12(2)(2ZA). This is because the position regarding how the first Early Conciliation was obtained and by who was unclear from the documentary evidence before the Tribunal. In particular, it was unclear why the Claimant appeared to have the ACAS reference number and yet had not provided the actual certificate reference number on the form given that the first certificate was issued some weeks before the claim was lodged.[6]Had rule 12(1)(da) applied and the only defect in the claim form been that an exemption had been incorrectly claimed, then it would, possibly, have been arguable that a purposive interpretation to rule 12(1) was required. I say this because 12(1)(d) appears to me to have been included in the rules as a substantive defect in order to prevent or discourage the mischief of a claimant relying upon an exemption when they are not actually exempt. The rules do not provide for a situation where a correct Early Conciliation certificate number has been included in the claim form (thus showing that the early conciliation process has been followed) and at the same time an exemption has been claimed.[7]Had the Tribunal interpreted rule 12 in this respect in a purposive manner, and also found that rules 12(1)(da) and 12(2)(2ZA) applied, it was possible that the Tribunal could have reached the conclusion that it had jurisdiction. This is therefore not a case in which it could be said prior to the hearing that there was no reasonable prospects of success.[8]The legal issues that arise in this case are of a complex technical nature. The requirements concerned have been the subject of much litigation in the Employment Appeal Tribunal, including very recently in the case of Pryce v Baxterstorey [2022] EAT 61.[9]The applicable rules in this case are not easy to grapple with and their interplay with other aspects of the rules (such as rules 6, 10 and 13) adds a further degree of complexity.[10]In addition, it is understandable, given the manner in which such cases are required to be dealt with due to the strictness of the rules, that the approach to be taken perhaps does not always make sense from a lay person’s viewpoint.[11]Neither the Claimant or his representative (who is also his brother) are legally qualified. Bearing in mind their more limited understanding of the complexities of the rules, and more limited ability to accurately assess the likelihood of success of the various approaches such as an application under rule 13 of the Employment Tribunals Rules of Procedure, I do not consider that pursuing the claim in the manner that the Claimant has done can be described as unreasonable behaviour on the facts of this case. Further, whilst the claim form fell to be rejected on the facts as I found them, the outcome was not a foregone conclusion.[12]In terms of the Respondent’s assertion that it was falsely claimed without reasonable excuse that one of the early conciliation exemptions applied, when no such exemption applied, I do not consider the allegation that there was no reasonable excuse to be well founded. I found as a fact that there was no dishonesty, or attempt to mislead, involved in the Claimant’s, or his representatives, actions in this respect.[13]Taking in to account the above factors, the Claimant has not acted unreasonably in bringing the proceedings or in the way that proceedings have been conducted nor could it be said that the claim had no reasonable prospects of success.[14]The Respondent’s application for costs is therefore dismissed.[1]The Claimant’s claim presented outside the time limits in sections 111(2)(a) and (b) of the Employment Rights Act 1996.[2]The claim is accordingly dismissed on the basis that the Tribunal has no jurisdiction to hear it.