Miss A Mann v Greater Glasgow Health Board: 4101629/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4101629/2022
Between
Miss A MannClaimantGreater Glasgow Health BoardRespondent
Before
Employment Judge B BeyzadeDate 19 August 2022
JUDGMENT
[1]The judgment of the Tribunal is that: 1.1 The claimant’s claim made on 23 March 2022 is rejected under Rules 12(1 )(c) and 1 2( 1 )(d) of Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. This is because the Claim Form does not contain an ACAS Early Conciliation certificate number and is made on a Claim Form which contains confirmation that one of the ACAS Early Conciliation exemptions applies, whereas an ACAS Early Conciliation exemption does not apply. The Tribunal therefore has no jurisdiction to determine the claimant’s direct race discrimination and harassment related to race claims. Accordingly, the claimant’s Claim Form shall be returned to the claimant.
REASONS
[1]The claimant presented cornplaints of direct race discrimination and harassment related to race which the respondent denied.[2]An Open Preliminary Hearing was held on 22 July 2022. This was a hearing held by CVP video hearing pursuant to Rule 46. I was satisfied that the parties were content to proceed with a CVP hearing, that it was just and equitable in all the circumstances, and that the participants in hearing were able to see and hear the io proceedings.[3]The parties prepared and filed a Joint Inventory and Bundle of Productions in advance of the hearing consisting of 1 58 pages. 154 At the outset of the hearing the parties were advised that the Tribunal would investigate and record the following issues as falling to be determined, both parties being in agreement with these:4.1 Whether the claimant has complied with the requirements of section 18A of the Employment Tribunals Act 1996, and if not, whether the Tribunal has jurisdiction to 20 hear the claimant’s claim.4.2 If the Tribunal has jurisdiction to hear all or part of the claimant’s claim, the Tribunal will also give directions in relation to further procedure. These matters were listed to be determined at today’s hearing following a Closed Preliminary Hearing that took place before me by telephone on 27 May 2022.[5]The respondent produced a chronology of events between 30 March 2020 and 27 May 2022. The claimant confirmed she had an opportunity to review this document. There were no disputed facts that were contained on the chronology. By agreement, the Tribunal therefore used the chronology and the documents 30 before the Tribunal as the basis of its findings of facts.[6]During the hearing, the claimant represented herself and the respondent was represented by a solicitor. Both parties made oral submissions.
Findings of Fact
[7]On the documents and chronology of events presented the Tribunal makes the following essential findings of fact restricted to those necessary to determine the list of issues -[8]From 30 March 2020 until 20 July 2021 the claimant was engaged by the respondent, Greater Glasgow Health Board, as a Maxillofacial Prosthetist.[9]On 23 March 2022 the claimant lodged an ET1 Form with the Tribunal claiming direct race discrimination and harassment related to race. In section 2.3 the claimant ticked the relevant box to indicate she did not have an ACAS Early Conciliation number and that ACAS did not have the power to conciliate on all or some of her claim.[10]On the same day as starting her claim the claimant commenced ACAS Early Conciliation. 1 1 ACAS issued the Early Conciliation Certificate to the claimant confirming that the claimant had complied with the ACAS Early Conciliation requirements on 25 March 2022.[12]The claimant sent an email to the Tribunal on 29 March 2022 requesting that her Claim Form be amended to include her ACAS Early Conciliation number (certificate number R1 36007/22/68). She stated that alternatively she could submit a new claim containing her certificate number.[13]On 01 April 2022 the Tribunal issued correspondence advising the parties that the claimant’s claim against the respondent had been accepted by the Tribunal.[14]By an ET3 and Grounds of Resistance sent to the Tribunal on 29 April 2022 the respondent defended the claim. Paragraph 3 of the Grounds of Resistance stated that under section 120 of the Equality Act 2010 (“EqA 2010”) and the provisions of sections 123(1) and 140B of the EqA 2010, race discrimination claims are subject to the ACAS Early Conciliation process and that therefore the claimant’s indication at section 2.3 on 1 n was incorrect. It was submitted that in accordance with Rule 12(2) of the Employment Tribunal Rules, there is an obligation on the Tribunal to reject the claim on both grounds, and the existing claim should therefore proceed no further and that the claim should be struck out. There were also issues of time bar raised and it was contended that the claim was submitted over at least five months oiitwith the statutory time limit. 1 5 A Closed Preliminary Hearing took place on 27 May 2022 during which the issues set out in paragraphs17.1 and17.2 of the Case Management Orders was listed to be investigated and determined at today’s Open Preliminary Hearing. Observations[16]On the documents and oral evidence presented the Tribunal makes the following essential observations on the evidence restricted to those necessary to determine the list of issues -[17]As I noted above, the respondent presented a chronology and a joint inventory of productions which were used as a basis for the Tribunal’s findings of fact set out above.
Relevant law
[18]To those facts, the Tribunal applied the law - 1 9 Rule 8 of Schedule 1 of The Employment Tribunals Rules of Procedure 2013, as amended (“the Rules") reads as follows: “Presenting the claim 8. — (1) A claim shall be started by presenting a completed claim form (using a prescribed form) in accordance with any practice direction made under regulation 1 1 which supplements this rule."[20]In Scotland, the relevant practice direction is the Employment Tribunals (Scotland) Presidential Practice Direction - Presentation of Claims dated 21 April 2021 . Under paragraph 5 of that Practice Direction, a completed claim form may be presented to a Tribunal in Scotland(1) online by using the online form submission service provided by Her Maje rts and Tribunal Service(2) by post to Employment Tribunate Central Office (Scotland), PO Box 27105, Glasgow, G2 9JR(3) by hand to a Tribunal office listed in the schedule to the Practice Direction.[21]Rule 6 of the Rules reads as follows: “Irregularities and non-compliance 6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;(c) barring or restricting a party’s participation in the proceedings;(d) awarding costs in accordance with rules 74 to 84.”[22]Rule 10 of the Rules requires the Tribunal to reject a claim in certain circumstances: “10 —(1) The Tribunal shall reject a claim if— (a) it is not made on a prescribed form; (b) it does not contain all of the following information— (i) each claimant’s name; (ii) each claimant’s address; (Hi) each respondent’s name; (iv) each respondent’s address [; or (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 (Hi) confirmation that one of the early conciliation exemptions applies.] (b)(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. ”[23]Rule 12 of the Rules states: “Rejection: substantive defects 1 2.—(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;] (a) (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.] (b)(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)] (c) 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.] (d) [(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 5 (1) unless the Judge considers that the claimant made [an](e) error in relation to a name or address and it would not be in the interests of justice to reject the claim. ](f)(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. ”[24]Section 18A Employment Tribunals Act 1996, reads as follows: “ISA Requirement to contact ACAS before instituting proceedings(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. This is subject to subsection (7).(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.(4) (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.(5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period. ■ 'W2022 Page 8(6) in subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.(7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases. The cases that may be prescribed include (in particular)—• cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter;• cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;• cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.(8) 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).”[25]In Adams v British Telecommunications Pic UKEAT/0342/1 5/LA, Mrs Justice Simler held that if the required minimum information is not provided within the Claim Form, the Tribunal has no option but to reject the claim unless that omission is capable of being excused by some other rule.[26]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 Rules does not provide discretion to an Employment Judge to disregard a mandatory rule.[27]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• 62S/2022 Page 9 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.[28]I have also had regard to the judgment of His Honour Judge Shanks sitting in the Employment Appeal Tribunal in Pryce v Baxterstorey Limited [2022] EAT 61 The EAT (HHJ Shanks) held that:a. the only way to rectify an error of starting Tribunal proceedings before there is an ACAS early conciliation certificate in existence is to start io them again after the ACAS certificate has been obtained using the standard claim form (paragraph 14);b. Rule 8 requires a claim to be presented by sending a completed ET1 claim form to the Tribunal - this requirement cannot be waived by either the Tribunal or the respondent (paragraph 1 5); and 1 5c. Rule 1 2 does not contain any suggestion that the error of putting in an ET 1 claim form without a certificate having been obtained is one of the specific errors subject to the procedure under Rule 1 3. Parties’ submissions[29]Both parties made oral submissions which I found to be informative. References are made to essential aspects of those submissions in this judgment.[30]The respondent’s representative submitted that the claimant had not complied with the ACAS Early Conciliation requirements set out in section 1 8A of the Employment T ribunals Act 1 996, that it was mandatory for the claimant to do so (section 1 fi and that the Tribunal did not have discretion to waive that requirement. The respondent’s representative cited the recent decision of the EAT in Baxterstorey in support of this proposition. He said the claimant’s email inviting the Tribunal to amend her claim to include the Early Conciliation number did not amount to representation of her claim, as her claim was not represented on a prescribed form. He submitted that Rule 6 of the Rules cannot be used to waive the statutory requirement as this would undermine the express statutory requirements under the Employment Tribunals Act 1996. Kisuim Page 1 0[31]The claimant submitted she believed that if an employee was no longer employed by an employer, ACAS did not have power to conciliate in relation to her claim. She was also working on the basis that the relevant code of practice she needed to follow was the ACAS Code of Practice, which she had completed, and she could not understand why this effectively had to happen again. She accepted that this was a mistaken belief. The claimant contended that she contacted ACAS on the day she submitted her claim, and she sought advice, and she was advised to send an email to the Tribunal with the ACAS Early Conciliation number requesting that the Tribunal io amend her claim.[32]The claimant believed that she could rely on Rule 12(2ZA) of the Rules. She submitted that the changes to the Rules were made (on 08 October 2020) after some of the cases relied on by the respondent. I observed that this Rule, however, relates to making an error in relation to an early conciliation number.[33]The claimant relied on first instance Employment Tribunal decisions in support of her contention that the Tribunal had jurisdiction to consider her claim. I considered that I was not bound by the decisions referred to by the claimant as 20 these were first instance decisions. In addition, none of those cases expressly considered the EAT’s decision Baxenstorey case.[34]The claimant also submitted that she had understood her claim had been accepted from the correspondence she received and would proceed to a hearing to be determined. Whilst a notice was sent to parties indicating that the claim had been accepted, I was satisfied that there was no judicial consideration in terms of whether the Tribunal had jurisdiction to hear the claim pursuant to section 18A of the Employment Tribunals Act 1996. In any event the respondent’s representative contended that the Tribunal could determine this as a jurisdictional matter at any stage of the proceedings and relied on the case of E. ON Control Solutions. I noted that at paragraph 42 of that case Eady J. stated: “On its face, Rule 12 ET Rules would seem to envisage that the input of the Judge (under para (2)) will arise after the claim form has been the subject of a reference under para (1). I am unable, however, to see that this is a necessary ■ 628/2022 Page 1 1 requirement. The language of Rule 12(2) obliges the ET to reject the claim if the Judge considers sub-paras (b), (c) or (d) apply; the obligation is not stated to be limited to a particular stage in the process but is expressed in general terms, so as to arise at whatever stage the relevant judicial consideration is undertaken.” Discussion and decision[35]On the basis of the findings made the Tribunal disposes of the issues identified at the outset of the hearing as follows -[36]The claimant presented her claim on 23 March 2022. At that time, she had not obtained an early conciliation number. The claimant’s ET 1 claim form wrongly contains confirmation that one of the ACAS Early Conciliation exemptions applies when no relevant ACAS Early Conciliation exemption applies. She had therefore not complied with the requirements set out in section 18A of the Employment Tribunals Act 1996 and the Tribunal did not have jurisdiction to consider her claim.[37]As rule 12(1 )(c) and (d) applies, I am required to find that the claim form must be rejected. I have no discretion to decide otherwise: the Tribunal has no general case management power or discretion in the matter which it can exercise in the claimant’s favour; E. On Control Solutions Ltd. v. Caspall paras. 41 , 54 and 56 applied.[38]The claimant obtained an early conciliation number on 25 March 2022, and she sent an email to the Tribunal on 29 March 2022 to request that her claim be amended to reflect the ACAS Early Conciliation number.[39]In my judgment, the Tribunal still had no power to accept the claim. When the original claim had been issued, it did not contain an ACAS Early Conciliation certificate number. The fact that a certificate number was subsequently sent to the Tribunal, does not remedy the original procedural irregularity. The Tribunal had no power to accept the claim under s18A Employment Tribunals Act 1996, and the subsequent submission of the ACAS certificate does not cure that irregularity. That in my judgment is in accordance with the decision of HHJ Shanks in Pryce v Baxterstorey Ltd, above.[40]In my judgment therefore, the Tribunal does not have jurisdiction to hear this claim and it is rejected pursuant to Rules 12(1 )(c) and 12(1 )(d) of the Rules and under the provisions of si 8(A)(8) of the Employment Tribunals Act 1996, as it was not presented correctly.
Conclusion
[41]The claimant’s claim made on 23 March 2022 is rejected under rules 12(1 )(c) and 1 2(1 )(d) of the Rules. This is because the claim form does not contain an ACAS Early Conciliation certificate number and is made on a Claim Form which contains confirmation that one of the ACAS Early Conciliation exemptions applies, whereas an ACAS Early Conciliation exemption does not apply. The Tribunal therefore has no jurisdiction to determine the claimant’s claim.[42]Alternatively, the claimant’s claims are not well founded are struck out under Rule 37(a) and (c) and pursuant to section 18A the Employment Tribunals Act 1996, as the Tribunal does not have jurisdiction to hear them.