Miss J Ellinor v Nirvana Spa and Leisure Ltd: 3327979/2019
JUDGMENT
The Claimant’s Claims are rejected pursuant to the provisions of Rule 12(1)(c) and (2) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.REASONS
[1]Employment Judge Hawksworth dealt with this matter by way of a Telephone Preliminary Hearing on 23rd October 2020. She listed the matter to proceed by way of an open Preliminary Hearing on 16th July 2021. At this open Preliminary Hearing the Claimant was represented by Ms Egan of Counsel and the Respondent by Mr Beever of Counsel.[2]I had received in advance of the Hearing a lengthy Bundle of Documents and Witness Statements from the Claimant, her solicitor Mr Simmonds and from Ms Carroll an employee of the Respondent.[3]Employment Judge Hawksworth’s Case Management Summary set out the issues to be determined at this Preliminary Hearing. The facts of the case are relatively straightforward. The effective date of termination of the Claimant’s employment with the Respondent, following her resignation, was 2nd November 2018. She presented her Claim to the Employment Tribunal purporting to pursue Claims of Constructive Unfair Dismissal and Disability Discrimination on 23rd December 2019. There was no dispute that the Claims were out of time.[4]In order to pursue the Claims the Claimant was required to comply with the statutory early conciliation procedure. In my judgment the law and regulations applicable to such matters was that which applied at the time the Claim was presented on 23rd December 2019 and not when the rules were amended in October 2020.[5]The Claimant had commenced via ACAS the early conciliation process by notifying them of the potential Claims on 11th December 2018. The appropriate certificate was subsequently granted dated 11th January 2019. It referred to certificate number R353614/18/47. Unfortunately no Claim was thereafter presented by the Claimant, who had solicitors acting on her behalf, within the statutory time period. On 26th April 2019 the Claimant obtained a second early conciliation certificate from ACAS. That contained the certificate number R149064/19/31. Even then there was a substantial delay in the Claims being presented. The Claims, as stated, were presented on 23rd December 2019. The Claim as presented made reference to the second early conciliation certificate and not, as it should have done, the first certificate.[6]As a consequence Rule 12(1)(c) of the 2013 Regulations was not followed.[7]I have considered the Judgment of the Employment Appeal Tribunal in Eon Control Solutions Limited v Caspall UKEAT/0003/19/JOJ. The Judgment of Her Honour Judge Eady QC is clear. That Judgment and a proper application of the rules leaves me with no alternative other than to reject the Claimant’s Claims. It is a mandatory rejection and not one to which I have any discretion. This means that effectively there were no proceedings before the Employment Tribunal. This therefore prevented me from dealing with any applications to amend the Claim and/or to go on to consider issues as to whether or not it was not reasonably practicable to present the Constructive Unfair Dismissal Claim in time and/or whether or not it was just and equitable to extend the time limit in relation to the Discrimination Claims.[8]It is now a matter for the Claimant, upon receipt of appropriate legal advice, to consider whether or not she should pursue an application for reconsideration of the rejection on the basis that the defect can be rectified. Such an application must be made in accordance with Rule 13(2) of the 2013 Regulations. I was also informed by Ms Egan that the Claimant now understands that she may have an alternative course of action in other jurisdictions insofar as the advice she has hitherto received.