Retrospective Early Conciliation

24 November 2014

That may appear to be a contradiction in terms, but in what is the first reported case of a claim being rejected for breach of the early conciliation rules that came into force in May 2014 (Thomas –v- Nationwide Building Society), an Employment Judge has allowed for the initial rejection of the claim to be reconsidered because the Claimant had belatedly complied with the early conciliation (EC) procedure.

The claimant, Thomas, brought a whistleblowing claim on 8 August that was subject to EC. She erroneously believed that she did not have to comply with the EC procedure before bringing her claim. When her employer NBS pointed out that the tribunal did not have jurisdiction to entertain the claim, Thomas argued that she could comply with the procedure retroactively by taking advantage of another Employment Tribunal rule that allows for rejected claims to be reconsidered if the rejection is based on a procedural defect that is subsequently rectified.

The Employment Judge accepted Thomas’ argument and rejected the employer NBS’ argument that retroactive compliance with the EC procedure would undermine the purpose of the new regime. Remarkably, the judge ruled that Thomas did not have to present a second claim before applying for EC: all the employee has to do is go through the EC procedure in respect of the original claim and get her certificate of EC. She did that on 7 October.

It is not all good news for the employee, however, who has, at least, lost 2 months of limitation time and whose claim is prima facie out of time. The tribunal must now decide at another hearing whether the claim can proceed or is out of time.

Employment lawyers predicted that the EC procedure might give rise to satellite litigation. This case illustrates the sorts of issues that are likely to arise. However, employers will be comforted by the fact that early tribunal statistics report a 22% drop in claims following the introduction of the EC regime.

By David Ludlow

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