In the case of Cranwell v Cullen
The Employment Appeal Tribunal (EAT) has held that a Tribunal was right to reject the Claimant’s claim, because she had not contacted the Advisory, Conciliation and Arbitration Service (Acas), before lodging her claim at the Employment Tribunal. Under rule 10 of the Tribunal Rules 2013, a Claimant must contact Acas before lodging a claim at the Employment Tribunal.
The Claimant was reluctant to contact Acas due to the nature of her claims involving sexual harassment, demeaning and derogatory conduct towards her and physical assault. Hence, she felt she had no choice but to go straight to the Employment Tribunal to lodge her claim.
Speaking about the case (Cranwell v Cullen), Mr Justice Langstaff, President of EAT admitted that the nature of the Claimant’s allegations were such that she may have been unwilling to pursue conciliation procedures with her former employer. He went on to concede that the Claimant probably did not realise that if she had spoken to Acas, it was likely that she would have been granted an early conciliation certificate. This would have allowed her claim to proceed to the Employment Tribunal, without having to enter any discussions with her former employer.
As the Claimant did not notify Acas of her claim before lodging it at the Employment Tribunal her claim was rejected. The Claimant appealed to EAT, who upheld the Tribunal’s decision to reject her claim.
What about justice for employees?
Rule 6 of the Tribunal Rules 2013 gives a Tribunal the discretion to waive or vary procedural requirements placed on a party in so far as it is considered just. Mr Langstaff considered that rule 6 was not intended to help a Claimant who had failed to follow a mandatory rule and therefore the Tribunal was obliged to reject the claim.
Although a Tribunal has some discretion to waive or vary procedural requirements this cannot overrule the mandatory requirement to contact Acas before lodging a claim. There are some limited circumstances where a Claimant does not need to contact Acas prior to lodging a claim but none applied to the Claimant’s circumstances in this case.
Making a claim against your employer – what you need to know
The Cranwell v Cullen case highlights the importance of knowing your rights as an employee and also the need to follow the correct procedures. The Claimant allegedly suffered appalling treatment at work, including sexual harassment and demeaning conduct, which culminated in physical assault. Whilst the Claimant may have been aware of Acas’ conciliation rule, the nature of her accusations were such that she likely felt she had no other choice other than to lodge a claim directly at the Employment Tribunal. Unfortunately this resulted in her being unable to pursue her claims altogether. It would no doubt have been distressing for the Claimant to have her claim rejected for failing to follow a mandatory Tribunal rule.
As the Cranwell v Cullen case has shown, if you are having problems at work, it’s always best to get independent employment law advice as early in the process as possible. Doing this will help ensure that your claim is not rejected for failing to follow a Tribunal rule.
Remember, you only have three months minus one day from the time the last event happened to notify Acas of your potential claim. If you do not notify Acas prior to lodging your claim at the Tribunal, your claim will more likely than not be rejected by the Employment Tribunal.