Employment tribunal procedure updated 2023: lessons from a long career – Part 2 (of 5)

Employment tribunal procedure updated 2023: lessons from a long career – Part 2 (of 5)

Employment tribunal procedure updated 2023: lessons from a long career – Part 2 (of 5)

ACAS early conciliation (EC)

Engagement in the ACAS early conciliation scheme before starting employment tribunal proceedings is compulsory.

It involves completing a simple form, basically stating the name and address of the claimant and the employer respondent. It is crucially important to state the  correct name of the respondent. This can normally be found at the beginning of the contract of employment.

In summary, an ACAS representative will contact both parties, seeking further information and attempting to negotiate a settlement. In my experience, ACAS conciliation has never succeeded. At the end of the conciliation period, ACAS will issue an early conciliation certificate. This includes a reference number which must be entered on the ET1 claim form for the tribunal.

A significant aspect of the early conciliation scheme is that it generally extends the time limit for a tribunal claim by one month. This needs to be carefully checked and it is always preferable to start proceedings well within the time limit and not to rely on the ACAS extension.

ACAS case examples

Peacock v Murrayfield Lodge Ltd, where P lodged an early conciliation notification which stated her employer’s address as a location where she had once met a director of the company. This was not the company’s registered address nor its normal place of business. ACAS contacted the employer at this address and issued an EC certificate. P’s advisers, without knowledge of the first application, then lodged a second form and another EC certificate was issued. ET proceedings were issued and were challenged by the employer. The issue was that if the first EC certificate were used, the proceedings were out of time.

The EAT made the following points: 

1. The claimant had to show that the first certificate was invalid because of the wrong address.

2. The first certificate was valid and the claim was out of time.

3. It is sufficient to give an address where business in relation to the respondent is carried out. There is no requirement that it is the registered or normal office.

Galloway v Wood Group UK Ltd. G started employment tribunal proceedings and provided ACAS with his union representative’s email address for issue of the early conciliation certificate. The address missed out the full stop in the middle. The certificate was sent to the faulty address. It was not delivered but did not bounce back. By the time the error was discovered, and the certificate sent to G’s personal email address, the claim was out of time. G argued that time should run when the certificate was actually delivered to him. Alternatively, the tribunal should extend the time limit because it had not been reasonably practicable for him to present his claim in time. The ET rejected these arguments. G appealed to the EAT.

The appeal was allowed. No email address had been supplied and the ACAS attempt to send the certificate had not been effective. The claim was not out of time. 

Savage v JC 1991 LLP and others.S was dismissed for alleged gross misconduct. During her employment, the name of her employer changed several times without her knowledge. She complained of unfair dismissal and entered three names for her former employer on the ET1. Her early conciliation certificate only related to two names. The ET rejected her claim against the third name on the ET1 on the basis that she had not obtained an EC certificate in relation to the third name. She appealed on the basis that the third name was not required.

The appeal was allowed.

The two EC certificates applied to three employers because two were the same entity. Noting the uncertainty as to the name of S’s former employer, caused in large part by the former employer, S had tried to deal with that uncertainty by naming three respondents.

Adams v British Telecommunications plc. A complained on February 16 2015 of unfair dismissal and race discrimination. She had obtained an early conciliation certificate on January 18 2015. Her claim was rejected on February 17 because the number of the early conciliation certificate was incomplete. On February 19, two days after the expiry of the time limit, A’s solicitor presented new claims with the correct number. The ET judge rejected the claims on the basis that it was reasonably practicable for the claims to have been presented in time. A appealed to the EAT.

The appeal was allowed. The ET had been wrong to treat the fact that A had presented a claim in time as meaning that a second claim could reasonably practicably have been presented in time.

The focus should have been on the second claim and whether there was any impediment to timely presentation of that claim.

The critical factor was prejudice. A would be deprived of any avenue for making her complaints because of a minor error in the first claim, which caused no prejudice to the respondent. 

Compass Group UK & Ireland Ltd v Morgan. M brought proceedings against C, her employer, alleging that she had been told to work in an alternative location in a less senior role. She entered into early conciliation (EC) in November 2014. The EC certificate was issued in January 2015 and she resigned in March 2015. She lodged an ET1 in March 2015 alleging constructive unfair dismissal. The employer argued that the claim was not properly constituted because the requirement to undergo early conciliation had not been fulfilled because M had not been dismissed at the time of conciliation. The employment tribunal found that an EC could cover future events and on the facts of the case, the proceedings related to a sequence of events which were in issue between the parties at the time of the EC process. The employer appealed to the EAT.

The appeal was dismissed.An EC certificate obtained by a prospective claimant could cover future events.

Provided that there were matters between the parties whose names and addresses were notified, and they were related to the proceedings instituted, that fulfilled the requirements of the section.There had been a connection between the factual matters complained about in the claim form and matters that were in dispute at the time of the EC process.

Settlement

Most claims settle before they come to a hearing. Settlement avoids the stress, inconvenience and expense of a hearing and achieves the object of a payment to the claimant. Settlements can be made at any stage of the proceedings, even up to the door of the tribunal courtroom. Much has been written about the skills of negotiating a deal. In fact, there is no magic to this. The overall aim is to get as high a payment as possible. Perhaps decide on a minimum acceptable amount and double it as an opening offer. There can then be further negotiations until a deal is reached. It is worth remembering that if the employer has started negotiations, even with a derisory offer, then the employer probably wants a deal to close the case down. Negotiations can be stressful but are often exciting and can be very satisfying if a decent deal is done.

There are two basic ways in which a formal, binding settlement can be made:

  • By a formal agreement between the parties, normally in the form of a downloaded template. The claimant must be advised by an independent legal adviser before signing the form. This advice is normally paid for by the employer.
  • By a COT3 form authorised by ACAS.

The standard form of a settlement agreement essentially binds a claimant to sign away most, if not all, employment rights, in return for a cash payment. There are strict legal requirements for the contents of settlement agreements. The agreement normally contains a non-disclosure clause. It is important to be aware that the agreement is, in law, a binding contract. If either side fails to keep to the terms of the deal, civil court proceedings may follow.

Also, take great care that protracted settlement negotiations do not compromise time limits.

Withdrawal of claim

When a settlement is achieved, the claim must be formally withdrawn. But note the following case:

Paul v Virgin Care Ltd. Ms P was dismissed for misconduct. She brought a number of claims in the ET, including automatically unfair dismissal. Ms P represented herself at a hearing because she could not afford legal representation. She withdrew the automatically unfair dismissal claim and the tribunal made an order dismissing that claim. Ms P appealed to the EAT, arguing that the ET had failed to take care to ensure that she had a free and informed choice when she withdrew the claim and had exerted undue pressure on her.

The appeal was dismissed. The EAT stated that the withdrawal of the claim had been clear, unambiguous and unequivocal.

The ET had acted properly with a view to clarifying and understanding the way in which Ms P was putting her case. Ms P had been given the opportunity to consider whether or not to withdraw that part of her claim. No unfair pressure had been put on her.  

ET1

The ET1 form, which is a standard form, starts the tribunal process. Information about completing the form can be found on www.gov.uk/employment-tribunals.  The tribunal accepts online or hard copy versions. If no standard acknowledgment form of receipt is received, the tribunal should be contacted to ensure that the ET1 has arrived.

Great care should be taken in completing the ET1. This is normally the first document read by the ET judge. It should contain, at the least, a relatively brief summary of the facts and the legal basis for the claim. Ideally, this should be set out in brief, numbered paragraphs. Lengthy and complex statements should be avoided.

Completion of the ET1 form is not particularly difficult, but care must be taken. Details of the claim can be set out in a separate document.

It is very important to note that once ET proceedings have been issued by lodging an ET1 form, you will effectively lose control of the case. As soon as the claim is issued, the ET judge’s powers, which are extensive, come into play.

The ET1 asks claimants to calculate the amount of financial compensation which they are claiming. This may cause difficulty and claimants should work out in advance, as far as possible, the way in which this amount has been assessed. In my experience, claimants frequently claim unrealistically large sums. If specific headings of compensation cannot be calculated, this should be stated in the ET1.

All sections of the ET1 should be completed as far as possible.

What can go wrong?

Claim not able to be sensibly responded to

Trustees of the William Jones’s Schools Foundation v Parry. P lodged a claim of unfair dismissal and arrears of wages against T. The claim form stated ‘Please see attached’ in relation to the details of the claim. P’s solicitors attached details of a different case by mistake. The ET accepted the claim. T asked the ET to reject the claim as being in a form which could not sensibly be responded to. The ET ruled that an application for reconsideration was only available to a claimant. T appealed to the EAT. The EAT dismissed the appeal. It stated that although the ET had been wrong to conclude that the claim could sensibly be responded to, the claims were indisputably claims which the ET had jurisdiction to consider. The ET’s error was immaterial and the reconsideration appeal was rendered academic.

Preliminary hearings

These are normally held by telephone and are held in discrimination or particularly complex cases.

The position of litigants in person in tribunal hearings is illustrated by the recent case of Moustache v Chelsea and Westminster NHS Foundation Trust (2023).

The facts, in outline, were that M lodged a grievance with CW, her employer. She complained that she had been bullied and harassed and had suffered work-related stress. She started ET proceedings for disability and age discrimination. The employer sought further and better particulars. M responded that her disability resulted from a hip replacement.

M was dismissed in May 2019 for lack of capability. She lodged a further ET claim of unfair dismissal and referred to her previous claims. She agreed a list of issues which identified her disability as a mobility issue. She did not refer to any mental impairment.

The ET ruled that the issues to be decided were those stated in the list. It found that the employer had done all that it could to enable M to return to work. It dismissed her claims. M appealed to the EAT, arguing that the ET should not have slavishly followed the list of issues.

The EAT decided as follows:

  1. The appeal was allowed and the matter remitted to the ET for reconsideration.
  2. It is the responsibility of the ET to help litigants in person to negotiate their way through legal procedures.
  3. The ET should have reconsidered the list of issues at the start of the hearing to help M, as a litigant in person, to clarify her claim.
  4. An agreed list of issues is not a formal and legal document but a case management tool to help with a fair and just trial of the real issues.
  5. M had made clear that she had been signed off work because of anxiety, work-related stress and panic attacks. She had identified that she had been absent from work because of a mental health condition.
  6. It should have been clear to the ET that M was trying to establish a connection between her mental health issues and her dismissal.

Case law example:

Mckinson v Hackney Community College. M complained of unfair dismissal, victimisation and race discrimination. At a case management hearing, M was ordered to identify no more than three incidents of victimisation, no more than six instances of discrimination and details of every protected act relied on for the victimisation claim. M submitted that the order effectively struck out a part of his claim and was contrary to natural justice.

The EAT ruled that the judge had been entitled to ask M to identify the exact nature of his complaints. It was in M’s and H’s interests to do so. The claim form was in narrative form and was very long.

The judge had been wrong to limit the number of instances of discrimination and victimisation which could be considered. There was no power to require a claimant to self-select which of a number of complaints which he would pursue at a final hearing.


About the author
Robert Spicer is Head of Chambers at Frederick Place Chambers, a niche practice specialising in employment law and health and safety. Details of the practice can be found on Chambers website: www.frederickchambers.co.uk