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; 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. [Summary not yet checked against the judgment.]
Followed by Reynolds v Abel Estate Agent Ltd [2025] EWCA Civ 1357 (2025-10-27)
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. [Summary not yet checked against the judgment.]
Overruled by Clark and ors v Sainsbury's Supermarkets Ltd [2023] EWCA Civ 386 (2023-04-06)
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. [Summary not yet checked against the judgment.]
Approved by Reynolds v Abel Estate Agent Ltd [2025] EWCA Civ 1357 (2025-10-27)
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
Overruled by Clark and ors v Sainsbury's Supermarkets Ltd [2023] EWCA Civ 386 (2023-04-06)
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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.
Followed by Reynolds v Abel Estate Agent Ltd [2025] EWCA Civ 1357 (2025-10-27)
Cited by
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
“But if no such rejection occurs it is not in my view open to a respondent to argue at a later stage that the claim should have been rejected. The respondent's remedy is to raise any points about non-compliance with the Rules in their form ET3, or in appropriate cases at a later stage, and to seek dismissal of the claim under Rule 27 or apply for it to be struck out under Rule 37.”Bean LJ, at [42]
Cited by
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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]. [Summary not yet checked against the judgment.]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.