Miss M Speakman v Goodsir Commercial Limited and 1 other — 2021

This was a preliminary hearing on the respondents' application to strike out Miss Speakman's indirect sex discrimination claim because the ET1 contained early conciliation reference numbers that did not match the first ACAS certificates in the bundle. The claimant had been employed by Goodsir Commercial Limited from 28 August 2017 to 3 March 2019, and the employment ended after maternity leave when she sought to return part time. The respondents said the role was redundant and no alternative part-time role could be found, but the tribunal did not determine those merits issues.

Employment Judge Nicklin found that the claimant had completed a valid early conciliation process on 9 May 2019 and that the certificates issued on that date were the ones that complied with section 18A of the Employment Tribunals Act 1996. The later certificates referred to on the ET1 were treated as the product of a second, voluntary conciliation process and could not be relied upon as the mandatory certificates for presenting the claim. On that basis, Rule 12(1)(da) was engaged because the numbers on the ET1 did not match the valid certificates.

The judge then applied Rule 12(2ZA) and held that the use of the later certificate numbers was an error, but that it would not be in the interests of justice to reject the claim. The reasons included that the claimant had already complied with the statutory conciliation requirement, both respondents had been named in the original early conciliation process, rejecting the claim would elevate form over substance, and the prejudice to the claimant from rejection would be greater than the prejudice to the respondents. The tribunal also noted that the dispute remained live, defended, and otherwise in time.

The result was that the claim was not rejected and the respondents' application to strike out was dismissed. The tribunal confirmed that it had jurisdiction to hear the discrimination complaint and said that case management orders would follow for progression to final hearing. No remedy was awarded at this stage.