Under Section 18A of the Employment Tribunals Act 1996, a claimant must contact the Advisory, Conciliation and Arbitration Service (Acas) in order to obtain an early conciliation certificate before bringing certain types of Employment Tribunal (ET) claims. Recently, the Employment Appeal Tribunal (EAT) ruled that an ET had jurisdiction to hear a woman’s claim despite her not having complied with the early conciliation requirements.
The woman had been dismissed from her job in an estate agency business. She was told that the reason for her dismissal was redundancy, but she believed that she had been dismissed because she had made a protected disclosure. As well as a claim of unfair dismissal, she brought a claim under Section 48 of the Employment Rights Act 1996 that she had been subjected to a detriment.
The early conciliation procedure applied to the Section 48 claim, but she brought it without first obtaining an early conciliation certificate. The ET did not spot this omission when the claim was presented and it was only some months later that the employer contended that it should be rejected as a result. At that point, the ET rejected the claim but permitted her to bring an amended claim. The employer appealed against the decision to allow her to amend her claim.
The EAT noted the case of Clark v Sainsbury’s Supermarkets, in which the Court of Appeal took the view that, if a claim was not rejected initially, it was not open to the respondent to argue later that it should have been rejected. The EAT concluded that the ET had been wrong to reject the woman’s claim.
The employer argued that the claim should be struck out or dismissed because the ET lacked jurisdiction to hear it. The EAT considered that, in the present case, jurisdiction was synonymous with having competence to hear a claim. The EAT found it inherently improbable that non-compliance with the requirement to contact Acas should affect the ET’s competence to hear a claim that, in all other respects, had been properly presented.
The EAT observed that the purpose of the early conciliation scheme is to encourage a claimant to take advantage of Acas’s services before a claim is commenced. If a failure to comply with the early conciliation requirement is only detected later in the proceedings, the possibility for early conciliation will have passed. The only effect of an approach that required the ET to dismiss or strike out a claim in those circumstances would be punitive. The EAT did not consider that the woman’s failure to comply with the early conciliation requirement deprived the ET of jurisdiction to hear her claim.
The EAT set aside the ET’s decision to reject her claim and dismissed the employer’s appeal, clearing the way for the ET to consider both her unfair dismissal claim and her Section 48 claim on their merits.