Early Conciliation not Required Before Applying to Join New Respondent to Existing Claim
In the recent case of Mist v Derby Community NHS Trust, it was held that it was not necessary for a claimant to go through the early conciliation (EC) process again before applying to join a new respondent to the proceedings.
The EC Process
Parties to a dispute have an obligation to consider conciliation through ACAS before proceedings can be issued in the Employment Tribunal. This is subject to a few limited exceptions.
In order to initiate the EC process, a claimant is required to provide certain prescribed information to ACAS including the name and contact details of the prospective respondent(s). If the prospective claimant does not wish to conciliate or conciliation does not result in settlement, an EC certificate is issued by ACAS, containing an EC certificate number which must be quoted on the claimant's ET1 claim form when proceedings are commenced.
The Decision in Mist
An employee brought a claim against her former employer (the First Respondent). Two months later, she applied to amend her claim to include the employer to which she claimed she had transferred under TUPE (the second respondent). She notified ACAS of her potential claim against the Second Respondent.
At a preliminary hearing, the judge granted her application to include the second respondent in the proceedings, on the basis that when she had initially brought proceedings, she had not fully understood the legal position and that she could be left without a remedy if her application was rejected.
This decision was upheld by the Employment Appeal Tribunal (EAT). The EAT confirmed that the claimant's application to join the second respondent was considered to be an amendment to her existing claim. For this reason, there was no requirement for the claimant to go through the EC process again.
Best Practice
The decision in this case is consistent with the approach previously taken by the EAT to EC requirements on the joining of new respondents to proceedings. It is a reminder, however, of the willingness of employment judges to adopt a more lenient approach towards claimants in relation to compliance with EC requirements where failure to do so may deny them a remedy.