Email with addition of EC Certificate did not amount to re-presentation of employment tribunal claim (Pryce v Baxterstorey)

Under section 18(8) of the Employment Tribunal Act 1996 (ETA 1996) a person who is required to comply with the early conciliation (EC) requirement may not present an employment tribunal claim without first obtaining an EC certificate. Where a claim is presented without the EC certificate first being obtained, that jurisdictional problem cannot be overcome by the claimant subsequently obtaining an EC certificate and sending details of that certificate to the employment tribunal by email. It is necessary for the ET1 claim form to be re-presented with the details of the EC certificate included and this is a requirement that the employment tribunal (or respondent) cannot waive, according to the EAT.

 What are the practical implications of this case?

HHJ Shanks described this case as ‘the kind of case that gives the law a bad name’. This is because the claimant, who was unrepresented, made an understandable error in failing to obtain an EC certificate before presenting her claim to the employment tribunal, which she then tried her best to remedy by sending a subsequently obtained certificate to the tribunal by email. Due to errors on the part of the tribunal, her claim was not immediately rejected (at a time when she could have re-presented it within the normal time limit) but instead only rejected when this jurisdictional problem was noticed by the judge at a preliminary hearing.

HHJ Shanks confirms in this judgment:

• the mandatory jurisdictional requirement to obtain an EC certificate before presenting a claim (unless one of the limited exemptions applies)
• the mandatory process to be followed to validly present an ET1 claim form (which meant that the claimant’s email could not constitute a re-presentation of the claim), and
• the lack of discretion on the part of the employment tribunal to waive either of these requirements (which meant the only way to remedy the claimant’s error was for her to present a fresh ET1 claim form with the EC certificate number included).

Claimants should always ensure that the EC requirement is complied with prior to presentation of a claim. If an error occurs in this regard it should be remedied with a fresh presentation of the claim as soon as possible in order to avoid the claim being presented outside the normal time limits.

Case details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge Shanks
• Date: 9 May 2022

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