On 18 February 2015, in Sterling vs United Learning Trust case, it was held that employment tribunal is entitled to reject a claim that was submitted out of time, due to the claimant entering the wrong Early Conciliation Number.
In this case, Sterling submitted her ET1 (the petition) missing some digits from the Early Conciliation Number, issued by ACAS through a mandatory conciliation process.
ACAS is an independent organisation acting between the employee and the employer to settle the dispute. If every attempt failed then, only an employee could move to the tribunal. However, it is a mandatory procedure for an employee before moving to the tribunal. Therefore, while filing a claim to the tribunal, the petition must contain the full reference number issued by the ACAS to substantiate that Early Conciliation was duly tried, but failed.
The claim was filed to the tribunal with some missing digits from the Early Conciliation Number four days before the expiry of the limitation period. It was returned to the Claimant by the tribunal office two days later, with an accompanying letter. The address cited by the office was neither that of her representative nor her home. It ultimately arrived at a neighbour's house, and the employee re-submitted straightaway, albeit out of time.
On appeal, the employee argued that the employment tribunal was not entitled to make such an inference but Employment Appeal Tribunal, Justice Langstaff Employment Appeal Tribunal President, disagreed. The Rule obliges the employment tribunal to reject a claim if the Early Conciliation Number is missing, although a party may apply for a reconsideration of such a rejection. However, no such application was made by the employee's representative.
The representative also failed to argue that it was not reasonably practicable for the employee to have lodged the claim in time. This is another application, where the judge can invoke his discretionary power to consider the claim. The EAT dismissed the employee's challenge to this aspect of the judgement, making it clear that the burden was on her to prove that it was not reasonably practicable and that even if the point had not been argued originally there was a duty on the employee to ensure that the EC number was cited correctly.
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