In the case of Miss J Pryce v Baxterstorey Limited Miss Pryce issued sex and race discrimination claims before she had obtained an early conciliation certificate from ACAS. By virtue of section 18A(8) of the ETA 1996 the ET plainly had no jurisdiction to consider the claims at that stage.
A few days later she emailed the ET enclosing a copy of a certificate she had obtained in the meantime and inviting the tribunal to add the reference number to the form. The claims were then allowed to proceed but some time later they were dismissed by the ET for lack of jurisdiction.
On appeal against that decision, the EAT rejected the appeal:
(1) The claimant’s email enclosing the certificate could not be considered as a “re-presentation” of the claim form since rule 8 of the ET procedure rules requires a claim to be presented by sending a completed ET1 to the tribunal, a requirement that cannot be waived; and
(2) There was no jurisdiction to waive the requirement to re-present the claim since, if there was, it would undermine the express statutory provision in section 18A(8) of the ETA 1996.
Judge Shanks commented ‘This, I regret to say, is the kind of case that gives the law a bad name.’
‘In the part of the ET1 form asking about the ACAS early conciliation certificate number, Ms Pryce ticked “no”. She also ticked the box stating that ACAS did not have power to conciliate on the claim; that regrettably was plainly wrong. I have asked Ms Pryce about this and I accept that as a lay person bringing a claim in a tribunal, when she ticked that box she did not fully understand what was being required or what she was saying, and I accept that she cannot be criticised for what she did.’
As laid down by an Act of Parliament, certain specified proceedings cannot be submitted without an EC certificate (including race and sex discrimination claims). The Employment Tribunal should have rejected the claim as soon as it had been submitted without the EC certificate.
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