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Incorrect ACAS Early Conciliation Certificate number on ET1 Claim Form

The Employment Appeal Tribunal (EAT) has overturned a decision by the Employment Tribunal in Adams v British Telecommunications plc that an ET1 Claim Form (ET1) which was originally presented in time, but which had the wrong Early Conciliation (EC) Certificate number and was re-presented out of time, was not accepted. The Employment Tribunal did not exercise its discretion to extend time and Ms Adams’ claim was limitation barred.

Ms Adams was employed by BT plc until 1 October 2014 when her employment was terminated. She commenced the ACAS early conciliation process in respect of claims for unfair dismissal and race discrimination. The process was unsuccessful and she was provided with a Certificate, by ACAS, on 18 January 2015. She had until 17 February to present her claims to the Tribunal.

Ms Adams and her solicitor attended at the Tribunal office on 16 February with her ET1, which was returned by post the next day, 17 February 2016 as the EC number provided was incorrect. It was missing two digits. Ms Adams’ solicitor received the ET1 claim form from the Tribunal on 19 February, two days after the last date on which her claim should have been presented. Ms Adams’ solicitor re-presented the claim with the correct EC number before 4pm on 19 February.

S.111(2) of the Employment Rights Act 1996 provides that an unfair dismissal claim should be presented:

     i)  within three months of the effective date of termination; or

     ii)  within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

The Tribunal held that it had not met this second limb as Ms Adams had presented a claim, although inaccurate, in time and it was not ‘not reasonably practicable’ to do so.

In relation to the race discrimination claim, S.123 of the Equality Act 2010 provides that a claim should be presented:

     i)  Within three months of the discriminatory act; or
     ii)  such other period as the employment tribunal thinks just and equitable.

The Judge concluded that it was not ‘just and equitable’ to extend time. It held that the inaccurate claim form was a matter of carelessness and sloppiness. Ms Adams appealed to the EAT.

The EAT held that the Tribunal had correctly concluded that the inaccurate claim could not be accepted. The EC Certificate number should be correct. Rule 12(2A) of the Tribunal Rules 2013 provide for an ET1 to be accepted where it includes a ‘minor error in relation to a name and address’. There is no mention of an error relating to the EC Certificate number.

Rule 13(4) provides that a corrected ET1 is presented on the date when the defect is rectified. Therefore, in this case, the Judge had correctly treated the claim as out of time as it was re-presented late on 19 February.

The EAT did however, state that the Tribunal’s consideration as to whether it was reasonably practicable to present the claim in time was flawed. It relied on the case of Software Box v Gannon in which it was held that the fact that a claim was presented in time and then rejected does not preclude a tribunal accepting jurisdiction in a second claim. The Tribunal had failed to take into account the fact that the error was a genuine mistake and Ms Adams would not have been aware of the potential consequence in respect of the claim not being accepted and her being limitation barred. It therefore exercised discretion and allowed the claim.

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

If you have any questions or would like to discuss the contents of the above article, please do not hesitate to contact us on knightpolson@qualitysolicitors.com  or 023 8064 4822.

 

 

 

Posted in: Employment

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