“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.”
“(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (‘W’) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W’s employer in the course of that other worker’s employment, or (b) … on the ground that W has made a protected disclosure. (1C)-(3) …”
“A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.”
“A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.”
“(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). This unusual lay-out appears in the statute itself. (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) 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. (5)-(6) … (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). (9) … (10) In subsections (1) to (7) ‘prescribed’ means prescribed in employment tribunal procedure regulations. (11) The Secretary of State may by employment tribunal procedure regulations make such further provision as appears to the Secretary of State to be necessary or expedient with respect to the conciliation process provided for by subsections (1) to (8). (12) …”
“(1) The Tribunal shall reject a claim if — (a) … (b) … (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.”
“At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds — (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) … (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d)-(e) …”
“In his judgment in Drake International Systems Ltd v Blue Arrow Ltd[2016] ICR 445 , Langstaff P explained the purpose of the provisions in the ETA 1996 and the 2014 Regulations as being ‘... to provide an opportunity for the parties to take advantage of ACAS conciliation, if they wish, led by the claimant in respect of what is broadly termed “a matter”’. ‘... to provide an opportunity for the parties to take advantage of ACAS conciliation, if they wish, led by the claimant in respect of what is broadly termed “a matter”’. 35. ‘30. ... Early conciliation builds into the employment tribunal process a structured opportunity for parties to take advantage of Acas conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with Acas and the issuing of an early conciliation certificate. The initial requirement placed upon a prospective claimant is, however, limited; it may even be by telephone. In any event, she is only required to provide her own name and address and that of the prospective respondent. She is not required to state the nature of the claim she might subsequently bring, still less to label it under the relevant statutory provisions ....’”
“Swift J was wrong to conclude that the Claimant’s failure to comply withsection 18A (1) of the Employment Tribunals Act 1996 did not deprive the Employment Tribunal of jurisdiction to hear the Claimant’s claims brought undersection 48 of the Employment Rights Act 1996 .”
“The word ‘jurisdiction’ can refer to different concepts depending on context. For present purposes the word is synonymous with having competence to hear certain types of claim.”
“The reason the application of subsection (2) may not be agreed by the parties but must be a matter decided by the Tribunal is not the result of a free-standing notion of jurisdiction but because, correctly construed, that is what subsection (2) requires.”
“31. Properly construed, section 18A does not provide any such absolute bar. The relevant provisions are section 18A(1) and (8). Subsection (1) imposes an obligation on the prospective claimant to provide information to ACAS. The nature of that obligation, taken together with the provisions in the Schedule to the 2014 Regulations is as described by Langstaff P in Drake International and HHJ Eady QC in Science Warehouse: see above at paragraph 4 [quoted at para. 34 above]. It is, at its highest, an obligation on a prospective claimant to consider whether to take advantage of ACAS conciliation. This, in the words of Langstaff P is a matter ‘led by the wishes of the prospective claimant’. It is inherently improbable that non-compliance with an obligation of this nature should affect the competence of the Employment Tribunal to hear a claim that, in all other respects, has been properly presented to it. 32. Consideration of subsection (8) does not alter the position. There is nothing on the face of this subsection that requires the conclusion that it is intended to affect the Employment Tribunal’s competence to determine a claim. The prohibition against presenting a claim is directed to the prospective claimant. Subsection (8) says nothing as to the Employment Tribunal’s competence to act if a claim is received.”
“There is plenty of authority which confirms that time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver: see …Dedman v British Building & Engineering Appliances[1973] IRLR 379 . … In Dedman, Lord Denning pointed out that even if an employer actively wishes to have the case heard by a tribunal, the tribunal still cannot hear it if it does not have jurisdiction. The reason is that the language of section 111(2) of the Employment Rights Act (as with its statutory predecessors) provides in terms that a tribunal ‘shall not consider’ a claim of unfair dismissal unless it is lodged in time. That is what makes these issues jurisdictional rather than mere limitation issues.”
“Once that moment has passed, once the Form ET1 has been sent to the respondent, or when the respondent has filed its defence, it makes much less sense, if any sense at all, to construe the effect of subsection (8) as removing the competence of the Employment Tribunal to decide the substantive claim. It is not obvious at all that the purposed by [sic] section 18A of the ETA 1996 and the 2014 Regulations would be served by a conclusion that proceedings should be treated as a nullity, requiring a claimant who wished to pursue the claim to start again after having gone through early conciliation, now facing the additional hurdle that the second claim would, like as not, have been commenced out of time (a point that would, no doubt, also be obvious to the respondent and would make the respondent less willing to engage with any form of conciliation). The only effect of an approach that required the Employment Tribunal to dismiss or strike out a claim as a matter of course would be punitive. The early conciliation procedures as enacted in section 18A and the schedule to the 2014 Regulations are not of that nature, and I do not consider such a conclusion is required by the language of section 18A(8). The statutory provisions as enacted, and the purpose that lies behind them, are better served by an approach that in such circumstances, allows the Employment Tribunal to consider whether to exercise its powers under rule 37 and/or rule 6 taking account all relevant circumstances.”
“In Cranwell v Cullen the claimant had not provided the prescribed information to ACAS before bringing her ET claim, and was not exempt from providing such information. Langstaff P, though expressing sympathy for the claimant, upheld the decision of an ET striking out the claim. I consider that he was right to do so. Sinces 18A of the Employment Tribunals Act 1996 lays down that (unless an exemption applies) the claimant must provide the information before the claim is brought, the tribunal in Ms Cranwell’s case had no jurisdiction.”
“Had that mistake not happened, had the error been brought to Ms Reynolds’ attention, there is no reason to think that the required certificate would not have been obtained.” (2) The Claimant’s original error in not invoking the early conciliation process was “explicable if not entirely excusable”
“Furthermore, section 18A does not purport to address the case of an existing Claimant, merely that of the prospective Claimant [italics in original]. For those who are existing Claimants, who seek to add additional claims to existing proceedings, this will be a matter for the ET, exercising its case management powers under Rule 29 of theET Rules 2013 and applying the well known guidance laid down in cases such as Selkent v Moore.”
“29. Does this approach undermine the objective of the early conciliation procedure, as [counsel for the respondent] suggests? Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation? [Counsel’s] fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the ET, properly exercising its judicial discretion. An ET is not bound to permit such an application. The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment. If such an application to amend were not permitted, it may be that the Claimant becomes a prospective Claimant in respect of that matter, and there may then be an obligation to invoke the early conciliation procedure unless one of the section 18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the early conciliation process arises. It is simply a matter of case management. 30. It seems to me that the most the Respondent can really say is that an ET considering whether or not to allow an amendment might consider the potential avoidance of early conciliation to be a relevant factor. I do not see, however, that it can be determinative. The rationale of the early conciliation scheme is to encourage the settlement of employment disputes before litigation has commenced and positions have become entrenched. Apart from the initial obligation to contact ACAS, however, the process is entirely voluntary. If the Claimant has no interest in participating in a conciliation process, she is not obliged to do so; the same is true of the Respondent. Early conciliation builds into the ET process a structured opportunity for parties to take advantage of ACAS conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with ACAS and the issuing of an early conciliation certificate. The initial requirement placed upon a prospective Claimant is, however, limited; it may even be by telephone. In any event, she is only required to provide her own name and address and that of the prospective Respondent. She is not required to state the nature of the claim she might subsequently bring, still less to label it under the relevant statutory provisions. That information might emerge during the conciliation process, but there is no requirement that it does so, and normally the ensuing discussions will remain confidential in any event. 31. Given, then, the limited nature of the requirement and the way in which early conciliation operates as an opportunity rather than a more stringent obligation, was the ET bound to decline to allow an amendment to add an additional claim where that could not have been a subject of the original early conciliation process? I do not consider that it was. Had the subsequent claim been entirely unrelated to the existing proceedings - and I am not going to speculate on what that might have been - the ET might have declined to permit the amendment, but that decision would be informed by a variety of factors, not merely the fact that no early conciliation process could have been engaged in.”
“Further and separately, the Act and Early Conciliation Regulations speak of a ‘prospective Claimant’ in relation to proceedings which have not yet been instituted. It makes no sense to talk of a ‘prospective’ Claimant once relevant proceedings have been instituted. Insofar as applications to substitute fresh Respondents to an existing claim is concerned, then if permission is refused, the applicant will be a prospective Claimant in relation to those Respondents: but at the time the application is made, that person is not, since ‘the matter’ is then subject to existing proceedings and will, subject only to the grant or refusal of amendment, either remain the subject of existing proceedings, or become the subject of proceedings yet to be instituted.”
“63. Had the Employment Tribunal done what it ought to have done then the Claimant would have been sent a notice rejecting her claim and informing her of the reasons why parts of the claim could not be accepted. She would have been notified of her right to seek a reconsideration and/or told that she might represent her claim with the identified defects rectified. The claim would have been treated as having been presented at the date it was presented with the defects cured. 64. The Claimant has acted for herself. She is intelligent and has done a very good job of identifying her claims in her original ET1. However, she would be at a considerable disadvantage in not being informed that only part of her claim should have been accepted. The point does not appear to have occurred to the Judge who vetted the claim form before indicating that it should be accepted. The point did not occur to me, and I did not recheck whether the claims should have been accepted in their entirety. Whilst Mr Airey must get credit for spotting the point he too did not do so at the early stages of the claim doing so only before me. If two judges failed to spot the point it is unsurprising that a litigant in person did not realise of her own volition that there were defects in her claim. 65. Adding a claim under Sections 47B/48 to the claims of unfair dismissal is not in my view a significant amendment. The claims are more advantageous for the Claimant but arise out of or are closely connected to the facts already said to support the unfair dismissal claims. The Respondents have known that the Claimant wished to advance such claims from the point that they received her ET1. They have set out their responses in their ET3s.”
“Mummery J says in his guidance in Selkent that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time-limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded … justice does not require the same approach: NB that in High Court proceedings amendments to introduce ‘new claims’ out of time are permissible where ‘the new cause of action arises out of the same facts or substantially the same facts as are already in issue’ (Limitation Act 1980, section 35 (5) ).”