Thomas v Nationwide Building Society3
In Thomas v Nationwide Building Society an employment judge has rejected a claim for failure to comply with the early conciliation procedure. However, he went on to find that the rejection could be reconsidered on the basis that the claimant had belatedly complied with the procedure.
Facts of the case
Ms Thomas presented a claim of whistleblowing detriment on 8 August 2014. Such a claim is subject to the early conciliation (EC) procedure. The legislation states that any would-be claimant must first contact Acas with details of the claim, and receive a certificate confirming completion of the EC procedure, before instituting tribunal proceedings. Failure to do so means that the tribunal has no jurisdiction to hear the claim.
Ms Thomas indicated on her ET1 that she did not have the relevant certificate but that she was exempt from EC. This was not correct and, after Nationwide raised the question of the tribunal’s jurisdiction to hear the claim, Ms Thomas conceded that her claim ought to be rejected for non-compliance with the EC procedure.
However, she argued that she could comply with the procedure retroactively and have the rejection of her claim reconsidered under rule 13(4) of the Employment Tribunal Rules of Procedure 2013, which allows for a rejected claim to be accepted if the rejection was based on a defect that has since been rectified.
An employment judge confirmed that the parties were right to agree that Ms Thomas’s claim was jurisdictionally barred. However, he went on to rule that non-compliance with the EC procedure was a “defect” capable of being rectified so as to allow for reconsideration under rule 13. He rejected Nationwide’s argument that to allow for belated compliance would negate the rules as the conciliation would no longer be “early”.
In the judge’s view, even belated compliance with EC would still be “pre-claim”, given that the original claim had been rejected. He also rejected the suggestion that Ms Thomas would have to present a fresh ET1 once she had completed the EC procedure. The effect of rule 13 is that the claim can proceed once the defect has been rectified.
In the meantime, Ms Thomas had gone through the EC procedure and had a certificate confirming its completion. Her claim would accordingly be treated as having been presented on the date stated on that certificate. The risk following this is that the claim will now be out of time.
Points to note
This is the first reported instance of a claim being rejected under the early conciliation rules, which were brought fully into force in May 2014. It highlights the courts’ intention to encourage the use of the EC procedure and that it should not be overlooked.