Ms K Hering née Ahonle v Homerton University Hospital NHS Foundation Trust: 6023363/2024
EMPLOYMENT TRIBUNALS
Case No 6023363/2024
Between
Ms K Hering née AhonleClaimantHomerton University Hospital NHS Foundation TrustRespondent
Before
Employment Judge E MacdonaldIn person for claimantMs J Franklin (instructed by Counsel) for respondentDate 12 December 2025
JUDGMENT
[1]The claimant’s claims are dismissed (in their entirety) pursuant to r 28 of the Tribunal Rules.[2]The respondent’s application for costs is refused.
REASONS
[1]An oral decision was given in the hearing. The claimant requested written reasons for the decision at the hearing. These are those written reasons.
The hearing
[2]The claimant referred in her claim form to her medical conditions and I therefore asked if she sought any adjustments. We agreed that I would try to keep my questions straightforward. I did my best to speak in plain English. I have tried to do the same in this document.[3]I confirmed that I had the relevant documents which the claimant and respondent wanted to use. These included a Preliminary Hearing bundle for the hearing, being 103 pages; a draft List of Issues filed on 25 November; an Agenda filed by the Respondent; a Bundle from the claimant sent on 19 July, with a second version sent on or around 4 August, running to 337 pages; and a further bundle sent by the claimant on or around 12 August, running to 23 pages.[4]The claimant presented her claim form (“Form ET1”) on 29 December 2024. I considered that document carefully. That form explained that the claimant’s employment began on 3 June 2019 and ended on 13 May 2022, and that she worked as a specialist nurse for looked-after children. She claimed unfair dismissal; discrimination on the grounds of sexual orientation, race, disability, marriage or partnership; she also claimed notice pay, holiday pay, and “other payments”; and she sought to make a claim for defamation of character, psychiatric injury, and violation of human rights.[5]The hearing had been listed to deal with the respondent’s application for strike-out. The respondent said, in essence, that the claimant had not obtained an ACAS Certificate before presenting her claim, and that this meant that she was not allowed to present a claim; and, as a result, that I should strike the claim out, because the Tribunal was not allowed to consider it (because the Tribunal “lacked jurisdiction”).[6]I heard submissions from Ms Franklin, and I then summarised those submissions for the claimant to give her a second opportunity to understand what was being said.[7]I also read the claimant’s written submissions, and I listened carefully to the claimant’s oral submissions. The claimant in particular asked me to read and take into account two reports: one by Dr Tanfield dated 2 September 2024, and one from Skylight Psychiatry dated 19 August 2024. I read those carefully before reaching my decision.
Relevant facts
[8]The relevant facts were not in dispute. The claimant and the respondent both agreed that the claimant had presented her claim form on 29 December 2024, but that the ACAS Certificate had not been issued until 30 December 2024. It had been issued by email. The claimant then provided it promptly to the Tribunal.
Law
[9]Section 2 Employment Tribunals Act 1996 says: “Employment tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Act or any other Act, whether passed before or after this Act.”[10]Section 120 Equality Act 2010 gives the Employment Tribunal jurisdiction to deal with complaints relating to work.[11]Section 111 Employment Rights Act 1996 gives the Tribunals jurisdiction to hear complaints of unfair dismissal.[12]Section 23 Employment Rights Act 1996 gives the Employment Tribunal jurisdiction to hear complaints of unlawful deductions from wages (which can include holiday pay).[13]Section 4 of The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 gives the Employment Tribunal jurisdiction to hear claims for breach of contract (including claims for notice pay) in certain circumstances[14]There are requirements for all of these claims to be presented within a certain time, but I do not need to set out the statutory provisions which deal with time limits here.[15]The most important section for the purposes of this hearing was section 18A(8) Employment Tribunals Act 1996 which says (leaving out irrelevant parts): 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. (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) If—(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. [. . . ] (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).[16]The respondent also relied on a case (an “authority”), Abel Estate Agent Limited v Reynolds [2025] EWCA Civ 1357, which the respondent said meant that s 18A Employment Tribunals Act prevented the claimant from being able to present a claim unless they have an Early Conciliation certificate.[17]The key passage in Reynolds is paragraph 53, where Underhill J said the following: In my view Swift J’s focus on the fact that subsections (1) and (8) only explicitly place obligations on the claimant is over-literal. I believe that if the statute prohibits the claimant from presenting a claim the natural consequence is that the tribunal is likewise precluded from entertaining it: the one is the corollary of the other. There is not much that I can say by way of amplification of that view . . .[18]The reference to subsections (1) and (8) is a reference to subsections (1) and (8) of section 18A Employment Tribunals Act 1996, which I have quoted above.[19]I also considered the case of Pryce v Baxterstorey Limited [2022] EAT 61. That was a case in which the claimant had issued sex and race discrimination claims before she had obtained an Early Conciliation certificate from ACAS. A few days later she emailed the Tribunal enclosing a copy of the Certificate. The Tribunal dismissed her claims for lack of jurisdiction (i.e. because it did not have the power to hear her claims). She appealed. The Employment Appeal Tribunal rejected her appeal. It said that Rule 8 of the Tribunal Rules required a claim to be presented in a certain way (i.e. on a form including an Early Conciliation number); she had not presented her claim on a form including an Early Conciliation number; so she had not validly presented her claim. The Employment Appeal Tribunal said that the requirement to get a Certificate before a claim can be started “. . . is a statutory requirement, and it is not open to a tribunal . . . to waive it.”[20]It is also worth setting out what Rules 6, 28 and 38 of the Tribunal Rules say. I have left out parts which are not relevant to this case. 6.—(1) An irregularity resulting from a failure to comply with any provision of these Rules, a practice direction, or any order of the Tribunal does not of itself render void the proceedings or any step taken in the proceedings. (2) In the case of non-compliance with these Rules, any practice direction or any order of the Tribunal, the Tribunal may take such action as it considers just, which may include 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 38 (striking out); (3) This rule does not apply to [. . .] an order made under rule 28(1)(b), 29(1)(b), 39 or 40. 28.—(1) If the Tribunal considers either that it has no jurisdiction to consider the claim, or part of it, or that the claim, or part of it, has no reasonable prospect of success, it must send a notice to the parties— (a) setting out the Tribunal’s view and the reasons for it, and (b) ordering that the claim, or the part of it, is to be dismissed on such date as is specified in the notice unless before that date the Tribunal has received written representations from the party advancing the claim explaining why the claim, or part of it, should not be dismissed. (2) If the Tribunal has not received written representations before the date specified in the notice under paragraph (1)(b), the claim is dismissed without further order and the Tribunal must write to the parties to confirm what has occurred. 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it . . . has no reasonable prospect of success; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[21]Ms Franklin said – and I accepted – that it is the valid presentation of the claim which gives the Tribunal jurisdiction. In plainer English, it is the valid presentation of the claim form which gives the Tribunal the power to deal with the claim. If the claim form is not validly presented, then the Tribunal cannot deal with the claim.[22]I repeat what s 18A(8) Employment Tribunals Act 1996 says: (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).[23]Pryce (which I have referred to above) says that this requirement cannot be “waived”. In other words, the claimant may not present a claim without an ACAS Early Conciliation Certificate, and the Tribunal cannot do anything about that requirement.[24]I will set out a brief decision on each of the claimant’s submissions.[25]The claimant asked me to waive the requirement. However, Pryce (in particular at paragraph 13) says that I am not allowed to do that.[26]The claimant said that there should not be “undue barriers to justice”. I may agree with her, but my views are simply not relevant.[27]The claimant referred to an extension of time limits. This is not a case where I need to decide whether time limits should be extended: the question is simply whether the claim form was validly presented (it was not) and whether I should strike out the claim because the Tribunal does not have jurisdiction to deal with it.[28]The claimant pointed out that the respondent was aware of the claim before she presented it, and that there had been correspondence about the subject matter of the claim for some time before the claim was presented. This is not a relevant factor.[29]The claimant also asked me to take into account what was said in Dr Tanfield’s report and in the report from Skylight Psychiatry. Those reports tell me quite a lot about the claimant’s medical conditions, but the claimant’s medical conditions are not relevant to the issue which I have to decide.[30]As the Employment Appeal Tribunal did in Pryce, I have a lot of sympathy for the claimant. She understandably thought that she had done what she needed to do. She explained – and I accepted – that she thought the respondent was not going to engage, but that they were aware of the issues, and so she issued her claim. The difficulty is that I have no option other than to dismiss the claim, because the claim form was not validly presented – it was presented before the Early Conciliation Certificate had been obtained – and so the Tribunal has no jurisdiction to hear the claim.[31]I considered what the appropriate step to take was. One option would be to dismiss the claim under Rule 28 (if necessary, varied in accordance with Rule 6); the other would be to strike the claim out as having no reasonable prospect of success under Rule 38.[32]Reynolds suggests that Rule 28 is the more appropriate route, but also says that the question of whether I use Rule 28 or Rule 38 “. . . is not of fundamental importance, since it is axiomatic that the Employment Tribunal must by one means or another decline to entertain a claim in respect of which it has no jurisdiction.”[33]I therefore decided to dismiss the claim under Rule 28. In doing so I waived the requirement to give notice and to consider written representations – in effect, I waived the requirements imposed by all words other than “28-(1) If the Tribunal considers . . . that it has no jurisdiction to consider the claim . . . the claim is dismissed.” Rule 6 allowed me to do that.[34]If I were wrong about that, I would have struck the claim out as having no reasonable prospect of success, and bearing in mind that there cannot possibly be a fair trial of an issue if the Tribunal does not have jurisdiction to consider it. I would also have struck the claim out on the ground that it is no longer possible to have a fair trial (for the same reason). Costs[35]The respondent applied orally for costs on the basis that the claim had no reasonable prospect of success. The bases of the application included that the claim was bound to fail because it was presented without a valid EC Certificate (applying Pryce); that it was considerably out of time; that the claims were unmeritorious, in part because the claimant accepted misconduct.[36]The relevant parts of the Rules say 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[37]Ms Franklin very properly – and fairly – reminded me that costs orders are the exception not the rule. They are compensatory, not punitive. It is a relevant factor if a party has not taken any legal advice. The Tribunal can have regard to the paying party’s ability to pay.[38]However, Ms Franklin said, I should exercise my discretion to make a costs order, in particular because the claimant had been on notice that the respondent thought her claim had no reasonable prospect of success since the first strike-out application which was made in February 2025.[39]The claimant told me that she did not have the ability to pay an order for costs; she did not have funds; she was a single mother with a disabled child; she has a son studying at Exeter University (I inferred that she supported him financially); she does not have any disposable income.[40]I reminded myself that the issue is not whether the paying party thought they were in the right, but whether they had reasonable grounds for thinking they were in the right: Scott v Inland Revenue Commissioners [2004] ICR 1410 (CA); Hamilton-Jones v Black UKEAT/0047/04 EAT.[41]The question is whether the claim or defence had “no reasonable prospect of success” based on the information that was known or reasonably available to the paying party at the start.[42]I reminded myself that this is an objective assessment.[43]I concluded that the claim had no reasonable prospect of success (as a matter of fact), but only insofar as the claim was subject to a flaw which could not (as a matter of law) be cured, i.e. the failure to have obtained an ACAS Early Conciliation Certificate. I considered that the requirement to have a certificate was reasonably available to the claimant at the start.[44]I considered that the test was met, albeit only just, and only on a technicality.[45]I therefore went on to consider whether I should exercise the discretion to make a costs order. I reminded myself of the overriding objective. I took into account the claimant’s means as well as her situation, as well as taking into account the fact that the respondent has been put to cost in responding to the claim, the costs warning letter which the respondent had sent, and the strike-out application which had been made in February 2025.[46]I decided that it was clearly inappropriate to make a costs order in this case. I considered that it would be neither fair nor just to order the claimant to pay the respondent’s costs (or a part of those costs) in the circumstances, in particular given her understandable confusion about what she needed to do to validly present a claim, and her confusion about whether the problem could be cured after the claim had been presented. Her claims have been struck out because Section 18A(8) Employment Tribunals Act 1996 imposes a strict requirement; I reached no conclusions about whether the claims themselves have any merit. The respondent’s costs application was refused. Approved by: