Can an ACAS Early Conciliation Certificate Apply to Future Events?

The Facts

Mrs Morgan suffered from acute anxiety disorder, which was made known to her employer, Compass Group PLC (Compass). In September 2014, she was instructed to work at an alternative location in a less senior position. Mrs Morgan submitted a grievance in respect of this instruction in October 2014.

In November 2014, Mrs Morgan entered into early conciliation and an EC Certificate was issued in January 2015. In March 2015, Mrs Morgan resigned and issued a claim for constructive unfair dismissal.

Compass argued that the tribunal lacked jurisdiction to hear the constructive unfair dismissal claim, as Mrs Morgan's dismissal occurred after the issue of the EC Certificate.

Legal Background

Section 18A of the Employment Tribunals Act 1996 (ETA 1996) sets out the process a prospective claimant must follow before bringing a claim.

It provides that before a prospective claimant 'presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter'. Proceedings may not be commenced until an EC Certificate has been issued.

Employment Appeal Tribunal (EAT)

The EAT held that there is nothing in the legislation to limit the scope of an EC Certificate to matters that took place before the EC Certificate was issued. It did, however, accept that there should be a factual connection between the matters raised in early conciliation and those complained about in the claim. Provided the matters between the parties at the point of early conciliation related to the proceedings issued, the requirements of s18A(1) would be met.

In this case the proceedings related to a sequence of events that were in issue between the parties at the time of early conciliation and therefore Mrs Morgan's claim for constructive unfair dismissal could proceed.

Best Practice

Employers should be reassured that this decision does not give prospective claimants a 'free pass' to bring proceedings about any unrelated matter. In future cases, it will be a question of fact and degree whether the matters raised during early conciliation are connected to the claims ultimately brought.

However, employers should be alive to the fact that employees are not required to detail each claim that they are contemplating bringing when entering into early conciliation and that new causes of action arising out of the same factual background will be covered, even where they arise after the issue of an EC Certificate.

For more information, please contact Nick Murrell in our Employment Law team on 0117 314 5627.