Mr S Todde v Educated Body — 2020

This was a preliminary hearing before Employment Judge Ferguson sitting alone on 30 January 2020. The Respondent argued that the claim form should be rejected because it did not contain a valid Acas early conciliation number. The claim form presented on 7 August 2019 identified the claim as one of disability discrimination and discrimination on religious grounds. Although the Claimant had ticked that he had no Acas early conciliation number and had referred to an exemption, he also wrote a different reference in the additional information section and later emailed the Tribunal attaching an early conciliation certificate.

At the hearing, the Claimant produced further certificates. The parties agreed that, applying HM Revenue & Customs v Serra Garau and the requirement in Rule 8 that an early conciliation certificate contain the unique reference number given by Acas, only one certificate was valid for the claim the Claimant wanted to bring: certificate R528090/19/93. The tribunal held that the ET1 did not contain that valid number, and that the earlier number placed on the form and the certificate sent by email could not cure the defect because the email certificate was of no effect once an earlier certificate had been issued.

The Claimant argued that the defect could be waived or varied under Rule 6, or that he had answered the early conciliation question correctly. The tribunal rejected both arguments, referring to E.ON Control Solutions Ltd v Caspall and Sterling v United Learning Trust. It held that the claim had to be rejected under Rules 12(1)(c) and 12(2), while noting that this was regrettable because the Claimant had in fact engaged in early conciliation and had a valid certificate before presenting the claim.

The tribunal decided there was no point returning the claim form under Rule 12(3) because the Claimant had already presented a fresh claim in identical terms using the correct early conciliation number. It noted that the new claim was out of time, but that the background would be relevant to any decision under section 123 of the Equality Act 2010 on whether to extend time on just and equitable grounds. The tribunal indicated that the new claim should be accepted and served, with an open preliminary hearing to be listed on the limitation and jurisdiction issue.