Mr L Robson v First Subsea Limited — 2023

Mr L Robson was employed by First Subsea Limited as a Service Technician from 2019 until 28 April 2022. He presented his claim form on 29 April 2022 and identified unfair dismissal, discrimination because of religion or belief, arrears of pay, and harassment/failure to protect health and safety. No early conciliation certificate was attached, but the claimant ticked the box saying the claim was exempt because it was an unfair dismissal complaint containing an application for interim relief.

The tribunal set out the law on section 128 Employment Rights Act 1996 and section 18A Employment Tribunals Act 1996. It held that the exemption in regulation 3 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 applies only where proceedings under Part X ERA 1996 are accompanied by an application under section 128. The claimant relied on Denton v TH White, but the tribunal said that case concerned breach of case management orders and did not give any discretion to ignore a mandatory jurisdictional requirement. The tribunal also referred to E.ON Control Solutions Limited v Caspall and Pryce v Baxterstory Ltd.

On the facts, the claim form did not contain and was not accompanied by any application for interim relief, so the regulation 3 exemption did not apply to the unfair dismissal complaint. The tribunal further held that the exemption could only apply to an unfair dismissal complaint, so it had no jurisdiction over the discrimination, arrears of pay, or harassment complaints either. The claim was therefore rejected under Rule 12(2) of the Employment Tribunal Rules of Procedure 2013 and could not proceed. The reasons also record that any reconsideration application had to be made within 14 days, and that a later early conciliation certificate would not cure the defect if none existed when the claim was presented.