Early conciliation and jurisdiction – Court of Appeal clarifies the consequences of non-compliance
The Court of Appeal has confirmed that failure to comply with the early conciliation requirements deprives the Tribunal of jurisdiction to hear a claim, though an identical claim may be introduced by amendment.
Background
In the case of Reynolds v Abel Estate Agent Ltd & Ors, the claimant was dismissed from her role at an estate agency and brought Employment Tribunal claims for automatically unfair dismissal (on whistleblowing grounds) and for whistleblowing detriment. Because she applied for interim relief, which must be made within seven days of dismissal, her unfair dismissal claim was exempt from the requirement to obtain an early conciliation certificate from ACAS. However, the detriment claim was not.
The claimant’s claim form did not include an early conciliation number but it was not rejected during the sifting phase. At a later hearing, the Tribunal rejected the detriment claim for failing to comply with the early conciliation requirements, but allowed the claimant to amend her claim form to reintroduce it, effectively curing the defect. The respondents appealed this decision to the Employment Appeal Tribunal, who dismissed their appeal. The employer appealed further to the Court of Appeal.
The Court of Appeal’s decision
The Court of Appeal allowed the appeal, finding that a failure to comply with the early conciliation requirement prevents a Tribunal from hearing a claim at all. If a claimant issues proceedings without first obtaining an ACAS early conciliation certificate (and no exemption applies), the Tribunal has no power to determine that claim. The Court emphasised that the statutory purpose of early conciliation is to reduce unnecessary litigation by providing an opportunity for disputes to be resolved before formal proceedings are initiated.
However, the Court also confirmed that the Tribunal was entitled to allow the claimant to amend her existing claim to reintroduce the same allegations. The early conciliation requirement applies only to the initial presentation of a complaint, not to amendments made once a case is already before the Tribunal. Additionally, the Court did not disagree with the way the tribunal judge has exercised his discretion in allowing the amendment. On the facts, the amendment was permitted because the detriment and dismissal claims were closely connected and the claimant’s error was understandable in light of the tight interim relief timetable.
Learning points for employers
This case clarifies that failure to obtain an ACAS early conciliation certificate before issuing a claim deprives the Tribunal of jurisdiction. However, where related proceedings are already in progress, the claimant may still be able to reintroduce the same claim by amendment. Employers should therefore raise jurisdictional objections promptly but recognise that a claimant’s procedural misstep will not always be fatal.
For more information or advice, please contact Sofia Efstathiou in our Employment team.