The claimant sent in her ET1 form to the ET on the day she was dismissed but didn't realise at the time that she needed an ECC number. A few days later she obtained an ECC number and emailed it to the ET asking them to add it to the form. At first this instruction was mislaid but eventually the number was added to the form. When the hearing started, the EJ spotted the point that the claim had been presented at a time when there was no certificate in existence and rejected the claim. Her appeal was allowed to proceed on the following grounds:

(1) The Tribunal erred in confining its future consideration of the issue identified to whether the claim should be dismissed on the basis that (a) it had been presented on 23 August 2019 when the claimant had not yet obtained an ACAS EC certificate and (b) no exemption from that requirement applied, and in not considering or allowing for the alternative possibility that the claimant should have been treated by her letter of 27 August 2019 enclosing a copy of the certificate of that date, as having re-presented her claim in a compliant manner.

(2) Alternatively, the Tribunal erred by not considering the possibility that the requirement to re-present her claim once she had obtained the certificate should have been treated as having been waived by the Tribunal and/or the Respondent.

The EAT dismissed the appeal. (1) The claimant’s email enclosing the certificate could not be considered as a “re-presentation” of the claim form since rule 8 of the ET procedure rules requires a claim to be presented by sending a completed ET1 to the tribunal, a requirement that cannot be waived; and (2) There was no jurisdiction to waive the requirement to re-present the claim since, if there was, it would undermine the express statutory provision in section 18A(8) of the ETA 1996.