The mandatory notification step before most tribunal proceedings, and the jurisdictional consequences of getting it wrong. Science Warehouse Ltd v Mills; Reynolds v Abel Estate Agent Ltd.
ACAS Early Conciliation; Amendments. A claimant who seeks to add a new claim (e.g., victimisation) by way of amendment to existing proceedings does not need to go through the Early Conciliation procedure again for that new claim. The EC certificate relates to the 'matter', which is broad enough to cover the amendment.
ACAS Early Conciliation; Substitution of Parties. The concept of a 'matter' in s.18A is broad. Where a claimant has validly conciliated regarding a dispute, substituting a respondent (e.g. a subsidiary for a parent company) does not require a fresh EC certificate.
ACAS Early Conciliation; Future Events. An EC certificate is not necessarily limited to events that pre-date it. If the 'matter' (dispute) continues, the certificate can cover a resignation (constructive dismissal) that occurs after the certificate was issued.
ACAS Early Conciliation; rejection of claims. OVERRULED by Clark and ors v Sainsbury's Supermarkets Ltd [2023] EWCA Civ 386. The claimant's solicitor entered the number of a different EC certificate on three successive claim forms, all of which were rejected. The EAT held that the requirement to give an EC number means an accurate number, that rule 12(2) obliged the judge to reject the claims, that rule 6 imported no discretion over failures to comply with rules 10 and 12, and that the overriding objective did not alter that. Bean LJ held each of those propositions wrongly decided (Clark, paragraph 48): the rule 6 waiver power does apply, and a respondent cannot argue at a later stage that an unrejected claim should have been rejected.
ACAS Early Conciliation; Mandatory Nature. The requirement to obtain an EC certificate is strict and jurisdictional. If a claimant ticks the 'no certificate needed' box incorrectly, the claim is a nullity and cannot be rectified by sending the certificate later.
ACAS Early Conciliation; rejection of claims. Where multiple claimants claim on one form, it is enough that the form contains the number of an EC certificate on which the name of one prospective claimant appears; a form must name each claimant and respondent, but need not carry an EC number for each. Rules 10 to 12 are a preliminary filter only, so if no rejection occurs it is not open to a respondent to argue at a later stage that the claim should have been rejected: the remedy is to take the point in the ET3, or in an appropriate case later, and seek dismissal under Rule 27 or strike out under Rule 37 (paragraph 42). On such an application the Rule 6 waiver power applies, and is a wide one (paragraph 43). Sterling v United Learning Trust and E.ON Control Solutions Ltd v Caspall were both wrongly decided and are overruled (paragraphs 47 to 48). Rule references are to the 2013 Rules: now Rules 11 to 13, 28, 38 and 6 of the 2024 Rules.
ACAS early conciliation; jurisdiction; amendment. The Court of Appeal (Underhill LJ) held that s.18A ETA 1996 goes to jurisdiction: where the claimant had not invoked early conciliation at all, the tribunal had no jurisdiction to entertain the claim as presented, and slipping through the rule 12 vetting stage did not cure that [60]-[62], [71]. Sainsbury's v Clark, which bars belated rejection, is confined to evidential non-compliance where a certificate existed and only the number was omitted [66]; its endorsement of Cranwell v Cullen was obiter, but Cranwell and Pryce v Baxterstorey were rightly decided [63]-[67]. The claimant nevertheless succeeded on the cross-appeal: s.18A applies only to the institution of proceedings, not to claims added by amendment, so the tribunal had jurisdiction to grant permission to amend to pursue the identical claim [86]-[96]. Science Warehouse v Mills and Drake International v Blue Arrow approved [85], [90].
Employment status; dual employment; amendment of parties. The EAT (HHJ Stacey) held that it is a well-established principle of employment law that in general terms one employee cannot simultaneously have two employers: for certainty and clarity a single entity must be responsible for paying wages and for the rights and obligations of employment [IDS 2.107]. The tribunal had found the claimant employed solely by one group company and refused permission to add it as a respondent, she having never been employed by the company she had named; the EAT upheld that refusal. The principle was applied in Cairns v Visteon UK Ltd and United Taxis Ltd v Comolly, and reduces the likelihood of a contract being implied between an individual and a client where an intermediary already employs them [IDS 2.112, 8.63].
ACAS Early Conciliation; No Exemptions. There is no exemption for cases where conciliation would be 'futile' or traumatic (e.g. sexual assault). The procedural requirement to notify ACAS must still be met.
ACAS Early Conciliation; rejection of claims. OVERRULED by Clark and ors v Sainsbury's Supermarkets Ltd [2023] EWCA Civ 386. A single claimant omitted two digits from the EC certificate number on her claim form, presented four days before time expired; it was rejected and returned to her too late to resubmit. Langstaff P held that where rule 10 requires an EC number it is implicit that the number be accurate, so once the tribunal found digits missing it was obliged to reject the form, that rejection standing subject only to reconsideration. Bean LJ held the case wrongly decided (Clark, paragraph 47): Parliament has not stated that a claimant who has in fact complied with the requirement to contact ACAS, and holds a certificate proving it, should be excluded from claiming because of a wrong number.