Wed 24 Feb 2016

Tribunal Judgments provide guidance on ACAS Early Conciliation

Three recent employment tribunal judgments have provided helpful guidance on the ACAS Early Conciliation process.

Three recent judgments have provided some welcome guidance on ACAS Early Conciliation.  The first case, Science Warehouse Limited v Ms J Mills, is a decision of the EAT which considered whether it was necessary for early conciliation to take place in respect of each claim brought by a Claimant.  Ms Mills had resigned from her employment while on maternity leave.  She made a number of allegations under the Equality Act 2010 and went through early conciliation which was unsuccessful.  She then presented a claim to the Tribunal complaining of discrimination on account of pregnancy or maternity contrary to the Equality Act.  Her employers response stated that, had she not resigned, she would have been subject to an investigation and potentially disciplinary proceedings in relation to a conduct issue.

On receipt of that information Ms Mills made an application to amend in a claim of victimisation in respect of the conduct allegations set out in the employer's defence.  The employer appealed on the basis that the claim had not gone through the early conciliation process.  Dismissing the appeal, the EAT found that the Employment Tribunals Act 1996 (which sets out the requirement for early conciliation) did not require that the early conciliation process was undertaken in respect of each claim, but used the broader terminology of "matter".  The EAT also envisaged that the requirement to notify ACAS was one that fell on a prospective rather than an existing Claimant.  Where, as in this case, the Claimant had lodged a valid claim and was applying to add a new, but related, claim, this was a matter for the Tribunal's general case management powers and there was no requirement for further early conciliation.

In the second case, Mist v Derby Community NHS Trust the EAT considered whether an error in the identification of a Respondent in an ACAS early conciliation certificate prevented the Tribunal from accepting the claim.  In this case the first Respondent was named correctly on the tribunal application, but incorrectly on the early conciliation certificate.  The requirement to provide prescribed information to ACAS, including the Respondent's full name, is set out in the Employment Tribunals Act 1996.  However, the name does not require to be the full legal title of the Respondent.  ACAS have the power to reject the early conciliation notification if relevant information is missing, but in this case chose not to do so and the Employment Tribunal were entitled to treat the certificate as conclusive of the Claimant's compliance with the early conciliation requirement. 

Further the Employment Tribunal Rules allow an Employment Judge to decide that a claim should not be rejected where there is a difference between the Respondent's details in the tribunal application and the conciliation certificate.

The final case, Drake International Systems Ltd and Others v Blue Arrow Ltd considered whether an employment tribunal is prevented from adding a Respondent to proceedings where that Respondent is not named on the early conciliation certificate.

The Claimant, who was a transferor in a TUPE claim, brought proceedings against a parent company, and properly completed early conciliation procedures in respect of that company.  Once proceedings had been issued, the parent company argued that the proper Respondents were four subsidiaries of it.  The Claimant successfully applied to amend her claim to substitute the subsidiaries for the parent company.  The subsidiaries argued that the Claimant should have first obtained an Early Conciliation Certificate in respect of each of them as a necessary pre-condition of making a claim against them. 

The EAT held that as early conciliation was required only before relevant proceedings were instituted, and in respect of a prospective Claimant and a prospective Respondent, and in this case as proceedings had been instituted and the Claimant was no longer prospective, early conciliation was not required. Moreover, the Employment Tribunal Rules allow for the exercise of discretion when an amendment is made and whereas it might well be envisaged that an employment judge might decline permission if the proposed substituted Respondent were completely independent of the existing Respondent, and there was little if any connection on the facts between them, that did not apply in the present case.

What all three of these cases have in common is that they are of assistance to Claimants in the bringing of proceedings.  While they should not be read as meaning that such decisions will always go the way of a Claimant, they do indicate that the Tribunal is reluctant to have early conciliation used as a barrier to bringing an otherwise properly constituted claim. 

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice