The case of Thomas v Nationwide Building Society is the first reported case of a claim being rejected by a Tribunal because of an employee’s failure to follow the early conciliation procedures.
New early conciliation procedures were introduced on 6th May 2014 requiring an employee to submit details of their claim to ACAS and to obtain a certificate before being able to proceed with their claim in an Employment Tribunal. The aim of the procedure is to try and prevent claims reaching the Tribunal with the hope that the parties will consider settlement at an early stage.
In this case, Miss Thomas indicated in her claim form that she did not have the relevant certificate and was exempt from the early conciliation procedures. Nationwide had applied to the Tribunal to have her claim rejected. In the meantime, Miss Thomas had contacted ACAS, submitted her early conciliation application and obtained a certificate of compliance.
It was accepted by Miss Thomas that she was not exempt from the early conciliation procedures and therefore, her claim was rejected by the Employment Tribunal.
However, Miss Thomas successfully argued before the Appeal Tribunal that the rejection of her claim should be reconsidered on the basis that the rejection was based on a defect that had since been rectified (she now had a certificate). The claim form would therefore be treated as presented at the time the early conciliation procedure would have concluded.
The date of ‘presentation’ to the Tribunal is important as there are implications for some elements of Miss Thomas’ claim being outside of the time limit for making a claim, and her claim has now progressed to a further hearing to consider this.
The reason for the Judge’s decision was that if Miss Thomas had not been allowed the opportunity to rectify the error in the procedure, it would have impeded her access to justice.
As an employer on the receiving end of a claim, businesses should examine the details of the claim form carefully, checking particularly the legal basis of the claim, time limits and jurisdictional issues. If there is an issue and it is considered the claim should have not been accepted in the first place, this should be raised without delay with the Tribunal.
The full judgment of the Employment Tribunal can be found here.