Since April 2014, prospective claimants must submit to mandatory early conciliation through ACAS before a claim can be issued. As evidence of compliance with this requirement, prospective claimants are issued with an Early Conciliation (EC) certificate by ACAS, which is then detailed on their claim form.
In Science Warehouse Limited v Mills, Mrs Mills presented a claim form (ET1) to the Employment Tribunal (ET) in April 2015, alleging discrimination because of pregnancy or maternity. She had complied with the EC procedure in respect of her claim.
In its response to Ms Mills' claim (ET3), her employer raised allegations of misconduct against Ms Mills. Ms Mills accordingly made an application to amend her claim to include victimisation. The employer objected to the amendment on the basis that Ms Mills had not used the EC procedure for this new cause of action. The ET rejected this and permitted the victimisation claim to be added to Ms Mills' claim.
The EAT confirmed the ET's decision. The EAT noted that the relevant legislation concerning the EC procedure used the broad terminology 'matter'.
The claimant is not required to particularise each complaint, or cause of action, as part of the EC procedure. All that is required is that the claimant provides basic contact details for themselves and their employer, and confirms whether they are interested in conciliation. The ET had case management discretion as to whether to permit the claim form to be amended and had exercised that discretion in Ms Mill's favour.
The EAT noted further that, had the new cause of action been completely unrelated to the existing claims, the ET may not have allowed the new cause of action to be added. However, the ET's discretion is wide and it will take into account a variety of factors when deciding whether to allow amendments. Whether the claimant has complied with the EC procedure in respect of a cause of action will be taken into consideration but will not be determinative.
This case serves as a warning for employers to take great care when responding to claims, as allegations set out in response forms can form the basis of further causes of action against them.
In this case, the EAT took a very pragmatic view towards the EC procedure. They underlined the limited requirements of the procedure and indicated that the EC procedure should not be used as a barrier to claims as its purpose is to encourage the settlement of disputes before parties' positions become entrenched.