We won – and it’s new case law
Although grappling with legal issues is a regular part of the job, we don’t often get a chance to add to employment law. We have now.
Apart from when new laws come into effect, employment law changes through decisions involving cases and often these can be Employment Tribunal decisions.
Quick HR has now added to case law in the relatively new process involving an obligation to involve ACAS, the employment and conciliation service, before you can make a Tribunal claim. You also have to pay fees.
We’re helping a woman who lost her job after almost a decade with a company. Let’s call her Miss X for now. The company offered her some money to leave and, when that didn’t work out, decided to make her redundant.
Before making a Tribunal claim, you have to involve ACAS who will attempt to find a way for both sides to resolve their differences. If that fails, ACAS issues a certificate and that’s now an essential requirement for anyone to make a Tribunal claim. There’s already case law on claims failing because there was no valid ACAS certificate.
In this case, an ACAS certificate was issued when the end of her employment looked imminent but negotiations for a settlement had proved fruitless. The company then changed tack and made her redundant instead.
Faced with a claim for unfair dismissal, the company’s solicitor argued that Miss X’s claim should be thrown out because her ACAS certificate related to an earlier issue and she did not have a second ACAS certificate about the redundancy.
Our arguments were:
- It was the same issue, connected to an ongoing attempt to end her employment – we don’t accept it was a genuine redundancy and that should be considered after a full hearing.
- Miss X contacted ACAS when she was made redundant and was advised that she did not have to repeat the conciliation process and there was no need for a different certificate.
- It cannot be reasonable to insist that employees have to go through repeated ACAS conciliations just to get certificates to make a claim.
- Agreeing with the company’s solicitor would create a loophole and less scrupulous employers would terminate people’s employment by switching processes, knowing that employees might not realise they have to repeatedly involve ACAS and have more than one certificate to make a claim.
The Judge ruled in Miss X’s favour and the case continues. The Judge decided: “In this case, it is clear to me that the termination was so close in time to the early conciliation certificate that broadly speaking, the ACAS conciliation certificate can only be said to be issued in connection with a likely termination. It matters not that the prospect of redundancy as a reason for termination had not been raised when she notified ACAS or that she had not been dismissed when the certificate was issued. The Regulations do not suggest that a certificate issued even some time before the events that ultimately gave rise to a claim would not be valid, subject to the operation of time limits.”
This is a new area for Tribunals to consider and this ruling now becomes case law, so it can be referred to during future arguments about claims and ACAS certificates.
If you want any more information about this issue, please contact Quick HR.
