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Employment Law

Legal guidance - compliance - software

18 MAY 2015

Claim rejected for failure to comply with early conciliation rules

Colin Godfrey
 Associate, Veale Wasbrough Vizards

 In the case of Cranwell v Cullen, the Employment Appeal Tribunal (EAT) confirmed that the Employment Tribunal (ET) had been right in its decision to reject a claim where the Claimant had failed to contact ACAS under the early conciliation procedure.

From May 2014, it is a pre-requisite of any claim in the ET that the claimant has first been through conciliation through ACAS, a step described as 'Early Conciliation'. This procedure requires that a prospective claimant contact ACAS to explore conciliation with the prospective respondent. Once complete (and assuming that conciliation is unsuccessful) ACAS will issue an Early Conciliation certificate, details of which will need to be included in any subsequent claim form.

 The procedure, set out in s18A of the Employment Tribunals Act 1996, applies to all cases,subject to limited exceptions.

 Miss Cranwell brought claims against her former employer for, amongst other things, sexual harassment and physical abuse. As Miss Cranwell had failed to contact CAS before lodging her claim, the ET judge felt he had no choice but to reject the claim.

 On appeal to the EAT, Miss Cranwell argued that her claim should have come under rule 6 of the Tribunal Rules 2013, which gives the ET discretion in cases of non-compliance to take action which it considers just and equitable including waiving the requirement. The EAT rejected this argument, stating that even though it was understandable that Miss Cranwell was reluctant to engage with the alleged discriminator at the Early Conciliation stage, the discretion afforded by the ET Rules could not extend so as to disapply the statutory obligation contained in s18A.

 The ET also noted that ACAS had the discretion to grant the Early Conciliation certificate allowing a prospective claimant to proceed with a claim, without the need to try and settle the claim, if ACAS felt there was no point in conciliation. As such, the EAT held the ET was correct in rejecting Miss Cranwell's claim.

 Best practice

 This case reaffirms the need for claimants to follow the Early Conciliation procedure before lodging any claim against their employer. It is advisable for employers to scrutinise claim forms carefully to identify any errors which might exist in relation to the completion of Early Conciliation and the time limits which apply.
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