CA-2025-000379 - [2025] EWCA Civ 1357

At the date that the Claimant presented her claim, the Procedure Rules were contained in Schedule 1 to the Employment Tribunals Rules of Procedure (Constitution and Rules of Procedure) Regulations 2013. They have since been superseded by the Employment Tribunal Procedure Rules 2024, but our attention was not drawn to any differences that would affect the issues in this appeal.

The rules with which we are principally concerned were inserted into the Procedure Rules by the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2014 in order to give effect to the requirements of section 18A (8) and paragraphs 7-9 of the Early Conciliation Rules of Procedure. They occur in the section headed “Starting a Claim”, which comprises rules 8-14: these are gateway provisions, in the sense that they prescribe requirements which a claimant has to satisfy before the claim form is accepted by the ET and sent to the respondent.

Rule 8 (1) provides that a claim shall be started by presenting a completed claim form, using a prescribed form. The prescribed form contains a section (2.8) in which the claimant is asked to indicate by ticking a box whether they have an “Acas early conciliation certificate number”, i.e. an ECN. If they have, they are required to give it. If they have not, they are required to tick one of four further boxes identifying circumstances in which a claimant is not required to invoke the early conciliation process: the fourth is “my claim consists only [my italics] of a complaint of unfair dismissal which contains an application for interim relief”. At the risk of spelling out the obvious, the purpose of requiring an ECN is that it establishes that an ECC has been issued, as required by section 18A (8).

Rules 10-12 provide for a claim in specified circumstances to be “rejected” by the ET itself at the gateway stage. The grounds for rejection are that the claimant has not used the required form or provided the required minimum information (rule 10); that the claim is not accompanied by any required fee (or remission application) (rule 11); or that the claim has one of a number of “substantive defects” (rule 12). Rule 13 provides for a claimant whose claim has been rejected to apply for it to be accepted “on the basis that either (a) the decision to reject was wrong or(b) the notified defect can be rectified”.

In the present case we are primarily concerned with rule 10 (1), which reads (so far as material):

“(1)

The Tribunal shall reject a claim if —

(a)

…

(b)

…

(c)

it does not contain one of the following —

(i)

an early conciliation number;

(ii)

confirmation that the claim does not institute any relevant proceedings; or

(iii)

confirmation that one of the early conciliation exemptions applies.”

The decision to reject under rule 10 is taken by tribunal staff, without reference to a Judge. That reflects the fact that the grounds for rejection depend simply on the way in which the form has been completed.

It is important to appreciate that rule 10 (1) (c) can apply in either of two situations –

Although in the present case the rule with which Claimant failed to comply is rule 10, I should note that some of the “substantive defects” specified in rule 12 (1) also relate to the early conciliation provisions, namely where the claim, or part of it, is –

“(c)

one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies;

(d)

one which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply;

(da) one which institutes relevant proceedings and the early conciliation number on the claim form is not the same as the early conciliation number on the early conciliation certificate;

(e)

one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates; or

(f)

one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates.”

In the case of rule 12 the defect, or suspected defect, is referred to an Employment Judge for decision as to whether it should be rejected.

I need to refer also to three other rules which are not specific to the early conciliation process but which are relevant to the issue on this appeal.

First, rule 6 is headed “Irregularities and non-compliance”. It reads (so far as material)

“A failure to comply with any provision of these Rules … does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—

(a)

waiving or varying the requirement;

(b)

striking out the claim or the response, in whole or in part, in accordance with rule 37;

(c)

barring or restricting a party's participation in the proceedings;

(d)

awarding costs in accordance with rules 74 to 84.”

Second, rule 27 is part of the section of the Rules dealing with the Employment Judge’s initial consideration of the claim following receipt of the respondent’s response. It provides, in part, that where the Judge considers that the tribunal “has no jurisdiction to consider the claim, or part of it” the claimant must be given the opportunity to make representations on that question, and that if such representations are not made the claim will be dismissed; if representations are made, the rule provides for a procedure for the determination of the question.

Third, rule 37 is headed “Striking out”. I need only set out paragraph (1), which reads (so far as material):

“At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds —

(a)

that it is scandalous or vexatious or has no reasonable prospect of success;

(b)

…

(c)

for non-compliance with any of these Rules or with an order of the Tribunal;

(d)-(e) …”