Represented himself For the v Mr J Naylor, solicitor — 2024

The claimant had been employed by the first respondent from September 2015 until August 2022. He later brought further employment-related claims that were compromised in a COT3 agreement in mid-November 2022. In the present case, the ET1 was presented on 14 August 2023. The tribunal recorded that the claimant said he had claims for sexual orientation discrimination and breach of contract, and that he also said at the hearing that whistleblowing was included, although the tribunal did not need to decide that point. It was not in dispute that Acas Early Conciliation had not taken place before the current claim was issued.

The claimant accepted that he had not complied with s.18A Employment Tribunals Act 1996 before presenting the claim. He said he had understood from speaking to Acas that EC was not mandatory, and that he thought an exemption applied because the respondent had previously been in touch with Acas in relation to the earlier dispute that led to the November 2022 COT3. The tribunal accepted that he had genuinely misunderstood what he had been told and that he thought an exemption applied, but found that no exemption in fact applied.

The tribunal held that the s.18A requirement was mandatory and gave it no discretion to allow the claim to proceed despite non-compliance. It said a deposit order or unless order would not cure the defect because they could not rectify failure to comply with a mandatory statutory provision. It therefore dismissed the claim under Rule 27 because the tribunal had no jurisdiction to hear it, and also said that, for that reason, it had no reasonable prospects of success and should in any event be struck out under Rule 37. The breach of contract complaint had already been withdrawn at the preliminary hearing on 10 November 2023.