Employment Wrongs · Strike Out · Time Limits

Discretion on the Sift

decisionWhen a claimant lodges an employment tribunal claim the case does not always get so far as the Respondent even needing to decide whether they contest the case and need to submit an ET3 (the document setting out a Respondent’s Grounds of Resistance). Sometimes an employment judge reviews the case at the outset and determines the case should not proceed (called ‘the sift’) and strikes out the claim.

Three appeal cases on this practice have been issued in the last two weeks and they offer a timely reminder to take care when lodging tribunal claims.

Cranwell v Cullen is a case in which the Appeal judge evidently had a great deal of sympathy for the claimant. In order to submit an employment tribunal claim it is a mandatory requirement (with very few exceptions) that a claimant must go through ACAS’ Early Conciliation process. This is evidenced by a EC certificate issued by ACAS, the number of which must be added in a claim.

The claimant alleged that the Respondent has subjected the claimant to sexual harassment and it is clear the issues between the two parties were extremely serious since the Respondent was prohibited from contacting the claimant. Understandably, given the gravity the claimant did not consider early conciliation would resolve the issue but evidently was not aware that while conciliation was not mandatory, approaching ACAS and explaining the position was.

In the event the claimant lodged an ET claim but did not approach ACAS before doing so. Despite the very serious complaint of sexual harassment against the Respondent the claim was struck out as no EC certificate had been issued which is a mandatory requirement. This was done without any hearing of the claimant’s explanation why the requirement had not been followed. At the appeal the EAT confirmed that in the application of this Rule an ET judge has no discretion even if, as in this case, a strict application of the law amounts to the denial of justice to an unrepresented claimant. Reading the law at issue it is difficult to conclude that this decision is correct insofar as the interpretation of the Rules goes but it is also difficult to avoid the conclusion that it is the absolute bar on discretion – even if that is just judicial discretion to further extend time limits to allow a claimant to follow the EC process – is an impediment to access to justice. The one sop is the judge’s indication that were the claimant to resubmit, having gone through the appropriate process, then even if out of time which seems to be almost certainly the case, the claimant may have good grounds to argue the case should nevertheless proceed to hearing but even hear there is no certainty.

Sterling v United Learning Trust covers similar terrain to Cranwell in that it also concerns the ACAS EC process as a necessary prerequisite to submitting a tribunal claim. Although the circumstances are less severe the circumstances are equally concerning. Here it appears the EC process had been followed by the claimant. The claimant submitted a claim, with an EC certificate, four days before the time limit expired but the EC number had a mistake on it. The Tribunal returned the form to the claimant to correct the error but addressed the envelope to the wrong address.  The claimant made the claim, with the correct information, as soon as she was able to but by that time the claim was out of time. As a result the claimant’s claims of unfair dismissal was struck out. Again, an analysis of the initial tribunal decision by the EAT did not find the decisions to be unlawful despite the errors of the tribunal itself (worryingly, this seems not to be a isolated incident where the tribunal’s address errors affects a claimant’s ability to have their claim heard – see Carroll v The Mayor’s Office for Policing and Crime).

Unlike the previous two cases Higgins v Home Office does not concern ACAS EC (but again (!) suggests that Tribunal staff made errors in addressing correspondence – see para 11). The claimant resigned her employment in 2007 and evidently had significant health concerns. Six years later the claimant in what was a very muddled ET1 (she was not represented) claimed she had been constructively dismissed, she submitted medical evidence that she had been too unwell to submit a claim. The EJ struck out (semantics notwithstanding) under Rule 12 of the Tribunal Rules which means the case was stopped without any hearing. The initial decision was a harsh one and the EAT allowed the appeal and remitted the case to a different EJ to consider afresh whether the claim can proceed.

So, what is the common thread in these three decisions. Leaving aside the apparent propensity of Tribunal staff to send incorrectly addressed correspondence to claimants (see Higgins, Carroll and Sterling) the issue in Carroll and Sterling is the absence of judicial discretion in the application of Tribunal Rules. While others in the union movement disagree by and large I think the addition of mandatory Early Conciliation process is by and large a positive one. However, it also introduces new requirements that give rise to additional errors claimants can make. The ET system is one which was intended to be “easily accessible, informal, speedy and inexpensive”. I suspect if you were to ask the claimants in Carroll or Sterling whether their experience was one which was ‘easily accessible’ or ‘informal’ you may find the answer is negative.

The Rules imposed by the last Government (which in respect to EC are, I think, positive) allowed no discretion for the exceptional case, such as the claimant in fear of her safety or the claimant whose claim is late because of Tribunal sent a form to the wrong address. The result is claims in such circumstances are legitimately refused lawfully whilst at the same time presenting a barrier to justice. That dichotomy needs to change.

More broadly however for employee representatives the cases above also offer a reminder on the need for care when presenting claims. I, like many reps, too frequently leave submitting claims to the very limits of the limitation period, not necessarily out of design but because of workload. That may often be a mistake – had the claimant in Sterling submitted the claim three week’s before the limitation period ended rather than four days previously there is every chance the error (if there was one) would still have been caught in time even if there was an error in the claimant’s address. Likewise, how often do we cross check the ACAS EC number we provide on the form (or check we’ve submitted one) before submitting? Failing to do so could result in a employee being deprived of the opportunity of presenting their case. And again, do we ensure the claim and tick boxes match and the actual nature of the claim is clearly spelt out (especially if a claim form is written by an employee rather than a rep – which may not be advisable but frequently happens). Failing to do so gives a Tribunal the opportunity – however unfairly – to strike out a claim.

Cases:
Cranwell v Cullen [2015] UKEAT 0046_14_2003

Sterling v United Learning Trust [2015] UKEAT 0439_14_1802

Higgins v Home Office & Anor [2015] UKEAT 0296_14_0605

Carroll v The Mayor’s Office For Policing And Crime [2015] UKEAT 0203_14_0902

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