Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Early conciliation

Early conciliation: employee’s failure to comply did not prevent claim going ahead

by Graham Brown 19 Nov 2014
by Graham Brown 19 Nov 2014 Form ET1
Form ET1

In a case report from Blake Morgan, an employment tribunal found that an initial failure to follow the Acas early conciliation rules was not necessarily fatal to the claim being considered by the employment tribunal.

Thomas v Nationwide Building Society ET/1601342/14

Early conciliation resources on XpertHR

How to get the most out of early conciliation

Podcast: Early conciliation

Policy on initial steps to take when Acas makes contact about early conciliation

Facts

Miss Thomas was an employee of the Nationwide Building Society. On 8 August 2014, she filed a claim (ET1) alleging that Nationwide had subjected her to a detriment for making a protected disclosure (whistleblowing).

The claim, which had been completed by Miss Thomas’ solicitors, did not contain an early conciliation certificate number and stated that the claim was exempt from early conciliation. The ET1 was accepted by the Cardiff employment tribunal.

When it filed its response, Nationwide argued that the ET1 should have been rejected as Miss Thomas had failed to undertake early conciliation. Miss Thomas’s solicitors accepted that it was not, in fact, a claim which was exempt from early conciliation. However, they sought an order for the proceedings to be stayed so that Miss Thomas could commence early conciliation retrospectively. Unsurprisingly, Nationwide objected.

Eventually Miss Thomas’ solicitors accepted that the employment tribunal had to reject the claim because of the failure to comply with the early conciliation rules, and the tribunal agreed. The tribunal was by now aware that Miss Thomas had contacted Acas to commence early conciliation. The question therefore remained whether or not, if Miss Thomas contacted Acas retrospectively, the employment tribunal could use its powers of reconsideration to override its own decision to reject the claim.

Decision

The tribunal ruled that it could apply its powers under the reconsideration provisions of the employment tribunal rules to treat the claim as having been presented at the end of early conciliation, even though it had only taken place after the original claim was filed. By completing the early conciliation process and receiving an early conciliation certificate, Miss Thomas had rectified the defect in the ET1. The tribunal therefore allowed her claim to proceed.

Nationwide asserted that if a claimant was allowed to correct a defect after a claim had been filed at the employment tribunal then it would cease to be “early” conciliation and it would also fundamentally undermine the early conciliation procedure. However, the tribunal ruled that with the claim rejected, it was as if it no claim had been made. Any conciliation now would still be “pre-claim” conciliation. The tribunal accepted that to deny Miss Thomas the opportunity to correct her error in this way would impede access to justice.

The tribunal also rejected Nationwide’s submission that Miss Thomas would need to present a fresh ET1. It held that the effect of the rules on reconsideration was to treat the original claim as presented on the date that the defect was rectified. Here it was rectified when the early conciliation certificate was issued, with the required early conciliation number, on 7 October 2014. This was the date on which the ET1 was to be treated as having been presented. It also meant Miss Thomas did not need to pay a second issue fee.

The tribunal did note that the decision gave rise to further issues as to whether or not the claim was now out of time, and allowed Nationwide to amend its response to address this issue.

Implications for employers

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

While not a binding decision, it appears to be one of the first to consider early conciliation since its introduction. The tribunal did nothing more than exercise the powers afforded to it under the employment tribunal rules, but the main implication is that, even if an employer successfully challenges the validity of a defective claim, this is not the end of the story. If there is sufficient time before the time limit expires, a claimant can take action to rectify the defect, even if this seems to undermine the purpose of “early conciliation”.

Nationwide’s solicitor argued that allowing this defect to be rectified would “drive a coach and horses through the new procedure”. It does seem questionable, given that there is no compulsion on the claimant to actively engage in early conciliation, to allow a claimant multiple attempts to correctly file a claim – especially in circumstances where the requirements for a valid claim are clearly stated and the claimant has been in receipt of professional legal advice. Those who remember the statutory disciplinary and grievance procedures that were in place until 2009 may well see echoes of similar satellite litigation where tribunals strove to allow claims that had failed on a technicality. Unfortunately, this often only adds to an employer’s legal costs.

Graham Brown

Graham Brown is a senior solicitor in the employment law team at Blake Morgan LLP, which has offices in Southampton, Oxford, Cardiff, Swansea, Portsmouth, Reading and London.

previous post
McDonald’s voted Overall Winner at 2014 Personnel Today Awards
next post
Occupational health nurses vote on joining forces with OH technicians

You may also like

Acas report reveals ‘exceptionally demanding year’

22 Jul 2024

25 years of employment tribunals – a system...

25 Aug 2023

First female chief conciliator for Acas

19 May 2023

Acas: Conflict costs employers almost £30bn a year

11 May 2021

Top 10 Covid-related claims employers could face in...

4 Dec 2020

How to dampen the conflict tinder box in...

9 Nov 2020

More employment tribunals to go virtual in raft...

17 Sep 2020

How to deal with an employment tribunal

4 Aug 2019

Acas: Demand for early conciliation goes up by...

22 Jul 2019

Tribunal claims up 90% since fees abolished

8 Mar 2018

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+