Employment Tribunal has jurisdiction despite absence of Early Conciliation
A recent Employment Appeal Tribunal ruling reminds employers to check ACAS Early Conciliation compliance early. Claims may still proceed if omissions are spotted too late.
Background
Early Conciliation is a mandatory process introduced to encourage dispute resolution before an employment tribunal claim is issued. Before bringing most types of employment claims, a prospective claimant must notify ACAS, which will then offer to facilitate settlement discussions. If conciliation is not pursued or fails, ACAS issues a certificate confirming that the claimant has complied with the requirement. This certificate must be included when the claim is submitted to the tribunal.
In Reynolds v Abel Estate Agents, the claimant brought a claim to the employment tribunal without first obtaining an ACAS Early Conciliation certificate. The tribunal did not initially notice the omission and allowed the claim to proceed. Several months later, the respondents identified the issue and argued that the claim should be rejected on procedural grounds. The tribunal then rejected the original claim but simultaneously allowed the claimant to amend her claim and proceed with it. The respondents appealed this decision, contending that the tribunal should have struck out the claim entirely rather than allowing it to continue through amendment.
EAT decision
The EAT dismissed the respondents' appeal and ruled that the tribunal was right to allow the claim to continue. It confirmed that failing to complete Early Conciliation does not automatically mean a claim must be thrown out. Once a tribunal has accepted a claim, even if it later becomes clear that Early Conciliation was not completed, it cannot simply reject it at that stage. Instead, it must decide whether the claim should continue or be dismissed on other grounds.
The EAT also made it clear that the Early Conciliation requirement is intended as a procedural safeguard rather than a strict legal barrier. The tribunal still has the power to hear a case, even if the claimant did not follow the correct steps before submitting their claim. The respondents’ argument that the claim was completely invalid due to the lack of conciliation was rejected, and the tribunal’s decision to allow the claim to proceed was upheld.
Learning points for employers
This decision highlights the importance of verifying Early Conciliation compliance as soon as a claim is received. If a claim is submitted without an ACAS certificate, it should be challenged immediately. Had the omission been identified at the outset, the tribunal could have rejected the claim outright, requiring the claimant to complete conciliation before refiling. However, once the claim was accepted and months had passed, the tribunal was no longer in a position to reject it.
Employers should ensure they:
- check for an ACAS Early Conciliation certificate upon receiving a claim;
- raise any procedural objections immediately, as late challenges may not be successful; and
- avoid relying solely on procedural technicalities to prevent a case from proceeding, as claims may still be allowed to continue.