Early Conciliation Number & Claim Form Information
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;
(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—
(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;
(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 … (c) … of paragraph (1).
The wording in Rule 10(1)(c)(i) and Rule 12(1)(c) of Schedule 1 of Schedule 1 Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 makes rejection mandatory.
Under Rule 13 a claimant may request a reconsideration of the rejection and if the original rejection was correct and the defect can be rectified then a judge will order the correction. Importantly the claim is then treated as presented on the date of the correction (sometimes outside of the primary limitation period) and not the date of the rejection or when the claim was first received. Of course it goes without saying that in order to ask for a reconsideration the claim must have been rejected in the first place.
E.ON Control Solutions Ltd v Caspall UKEAT/0003/19 reinforces the importance of ensuring that not only must the EC Certificate be valid but also the correct number must be entered into box 2.3 on the Claim Form. The consequences of failure are significant.
What was it about?
The claimant’s first, second and third ET claims had been lodged within the primary time limit. Each claim had cited the wrong EC certificate, having given the details of another employee’s certificate and not that relating to the claimant.
The fourth claim, had given the correct details for an EC certificate obtained by the Claimant however because the details were in respect of a second EC certificate, this EC Certificate was invalid (see HM Revenue & Customs v Serra Garau UKEAT/0348/16). The fourth claim was also presented after the expiration of the primary time limit.
These errors were not picked up at the Tribunal office and so the claims were allowed to proceed. The early conciliation number point was taken by the respondent and a preliminary hearing took place.
The Employment Tribunal treated the errors in respect of the first three claims as being capable of being remedied by way of amendment and allowed these to proceed. The Judge treated the fourth claim in the same way but did not decide the reasonably practical issue.
What did the Employment Appeal Tribunal think?
The judgment leads the reader on a very helpful and instructive path through the ET Rules and how the rules apply to this type of situation. The claimant had sought to argue that a Tribunal had a residual discretion under Rule 6 that allowed the judge to exercise his discretion in relation to this issue on the grounds that it was in the interest of justice to do so.
However HHJ Eady QC rejected this for three reasons:
- The case law did not support such an approach to the mandatory provisions in the ET Rules (see Cranwell v Cullen UKEATPAS/0046/14 and Baisley v South Lanarkshire Council UKEATS/0002/16.)
- The requirement was mandatory. HHJ Eady QC pointed out that there were other aspects of non-compliance under Rule 12 such as Rule 12(1)(e)&(f) where such a discretion was present (see Rule 12(2A) – minor error and in the interests of justice). No such discretion applied to Rule 12(1)(C).
- In order for Rule 6 to be invoked there had to be proceedings and as the effect of Rule 12(1)(c) is that the claim is rejected there are no proceedings to which the discretion found in Rule 6 could be applied.
The outcome of the appeal was that the claims that were the subject of the ET’s decision failed to comply with the requirements of Rules 10 and 12; they were of a kind described by Rule 12(1)(c). The claims were rejected and a notice of rejection was issued giving her reasons for rejecting the claims and information as to the right to apply for reconsideration under Rule 13.
What can we take away?
Whenever I am asked to draft a Rider to the Claim Form I always double check that there is a valid EC Certificate and that the number of the certificate in the Claim Form corresponds with the number on the certificate. Similarly when I am asked to draft a response one of the first things I check is whether the number of the EC Certificate corresponds with the number on the Claim Form. This should be second nature for all practitioners as an error can have significant consequences.