Sainsbury's Lose Argument to Remove 700 Claimants from Group Claim
The Court of Appeal has rejected an appeal by the supermarket to eliminate the majority of claimants in a long-running 865-person equal pay law-suit, on the grounds that their names were not recorded on an Early Conciliation Certificate.
Obtaining an Early Conciliation Certificate from ACAS is usually the compulsory first step when lodging an employment tribunal claim. The certificate number will be referred to in the claim form (ET1) and is generally required to prove that claimants have gone through the mandatory conciliation process prior to starting litigation.
Road to the Court of Appeal
In Sainsbury's Supermarkets Ltd v Clark & Ors [2023], at the Employment Tribunal (ET) stage, the Employment Judge agreed with Sainsbury's argument that a number of claims in the case should be struck out as their names were not on the Early Conciliation Certificate which was referenced on their claim forms.
The claimants appealed and in September 2022, the Employment Appeal Tribunal (EAT) overturned the ET's decision, thereby restoring the claims dismissed at the ET. Judge Tayler, who presided at the EAT, said that an Early Conciliation Certificate with just one prospective claimant's name on it would suffice in a group claim such as this.
Sainsburys' appealed and the case was subsequently heard by the Court of Appeal.
Key Take-Aways
The Court agreed with the EAT and held that in the context of a group claim it would be enough to refer to the number of an Early Conciliation certificate on which the name of just one of the prospective claimants appears.
Adding to this, Lord Justice Bean highlighted the overriding objective of dealing with claims fairly.
The case illustrates that, in the words of Lord Justice Bean, "employment tribunals should do their best not to place artificial barriers in the way of genuine claims".
The judgment does not apply to cases where claimants have failed to make the necessary reference to ACAS in advance of lodging a claim. However, it does illustrate the risks of raising purely technical challenges around points of process.