Claimant v BaxterStorey Limited — 2019

The tribunal considered at a closed preliminary hearing whether it had jurisdiction to hear the claimant's complaints. The judgment records that the claim form was presented on 23 August 2019, but the ACAS Early Conciliation certificate was not issued until 27 August 2019. The judge held that an Early Conciliation certificate was a mandatory prerequisite to presenting these relevant proceedings and that none of the statutory exemptions applied.

The respondent's position, as recorded in the reasons, was that the claims brought were race discrimination, sex discrimination and unpaid holiday pay, all of which required compliance with the ACAS Early Conciliation regime before issue. The claimant accepted in correspondence that she had not gone to ACAS before the claim form was submitted. The judge also noted that the claim form incorrectly asserted that ACAS did not have the power to conciliate on some or all of the claim.

The file showed that the claim had initially been marked for rejection because there was no Early Conciliation certificate, but it was later accepted after the tribunal received the claimant's 27 August 2019 email attaching the certificate. The judge found that this did not cure the jurisdictional defect because the claim had already been lodged before the certificate was issued. The judgment states that there was no discretion on this point.

Accordingly, the tribunal dismissed the complaints in the claim form for want of jurisdiction under section 18A(1) and (8) of the Employment Tribunals Act 1996. No substantive determination was made on the merits of the race discrimination, sex discrimination or unpaid holiday pay allegations, and no remedy was awarded. The judgment states that it was a matter for the claimant whether to bring the claims again, subject to time limits and the relevant statutory provisions.