ACAS Early Conciliation Not Necessary for Making Additional Claim
In Science Warehouse Ltd v Mills, the Employment Appeal Tribunal (EAT), Her Honour Judge Eady QC sitting alone, determined that an employment tribunal was entitled to exercise its judicial discretion to permit an amendment to a claim, and that while this amendment added a new cause of action, that did not require the Claimant to acquire a further ACAS Early Conciliation certificate first.
The appeal was brought by Science Warehouse Ltd (the Respondent in an employment tribunal claim), the argument advanced being that the Claimant, in amending their ET1 claim introduced a new cause of action that had not been subject to ACAS Early Conciliation first, and that the Employment Tribunal, by permitting an amendment that added a cause of action without first requiring this further cause to be subject to the formality of ACAS Early Conciliation EC), the Claimant could, theoretically, dramatically alter the nature of their claim, by-passing EC. Mr Rees, appearing for the Respondent (Appellant at the EAT), advanced a hypothetical scenario that a Claimant could lodge an ET1 for a simple wages claim, then add unfair dismissal and/or discrimination claims later, without going through EC for these claims.
While this was a valid argument on a minor matter of principal – in practice, it wouldn’t have taken the Claimant much to contact ACAS, go through the formality of EC over the phone, and continue with the application to amend the claim – it wasn’t upheld by the Appeal Tribunal.
Eady HHJ’s judgment recognises that the rules governing Early Conciliation do not require each cause of action, or each individual claim, to be set out in the EC process. (In fact, all that is required is the names of the potential parties, and if there is no agreement to engage in conciliation, the process could effectively be concluded immediately.) Furthermore, the permission to amend an appeal must be properly exercised by an Employment Tribunal, properly exercising its judicial discretion, so the approach of seeking permission to amend a claim is far from an automatic back door to circumvent the intention of the EC process, but rather a standard case management issue that Employment Judges determine routinely – and in practice, more complicated than contacting ACAS.
The judgment observed that the way EC operates is “an opportunity rather than a more stringent obligation” to engage in conciliation, and that it would be for an Employment Tribunal to decide whether to permit an amendment that is entirely unrelated to existing proceedings, but that these are properly case management decisions, decisions for the Employment Tribunals to determine in each case.
While the case of Crunwell v Cullen made clear that Early Conciliation does require ACAS to be contacted in appropriate cases, and the tribunals have no discretion to ignore this fact, this judgment at least clarifies (not that there was any doubt) that the limited formalities of EC won’t be so rigid that they alone could be relied upon for cases to fall on a technicality – unlike the impractical & repealed Statutory Dispute Resolution Procedures.