Early Conciliation

The law requires prospective tribunal claimants to go through a process of early conciliation by contacting Acas and being issued with an early conciliation certificate before they can lodge a claim. In Science Warehouse Ltd v Mills, the Employment Appeal Tribunal (EAT) held that claimants do not have to go through the process again when they want to add another claim that relates to an existing one.

Basic facts

Ms Mills worked for Science Warehouse until she resigned while she was on maternity leave. Prior to her resignation, she submitted details of prospective claims under the Equality Act to Acas. On 27 February 2015 Acas issued an early conciliation certificate.

Ms Mill then lodged a tribunal claim for discrimination because of pregnancy or maternity, contrary to the Equality Act on 8 April. In their response to her claims, her former employer alleged that, had she not resigned, Ms Mills would have been subject to an investigation and potentially to disciplinary action about a conduct issue that had come to light during her maternity leave. She then applied to amend her claim to include a claim for victimisation.

Science Warehouse objected on the basis that Ms Mills had failed to go through the early conciliation process with regard to the additional victimisation claim.

Tribunal decision

The tribunal held that it was not necessary to obtain an early conciliation certificate and allowed the amendment.

Relevant law

Section 18A of the Employment Tribunals Act 1996 states that before a prospective claimant can present a tribunal claim “relating to any matter”, they “must provide to Acas prescribed information, in the prescribed manner, about that matter”.

EAT decision

Noting that parliament had used the broad term “matter” (rather than “claim” or “cause of action”) in section 18A, the EAT held that the reference to “claim” in the explanatory notes to the Act could not be interpreted as meaning a claim based on a particular cause of action. This broader interpretation was also consistent with the early conciliation rules which did not require potential claimants to formally set out each “claim”, presumably to avoid “disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal”.

As for the objection that the amendment of an existing claim was not exempt from the requirement to comply with early conciliation under section 18A(7), the EAT held that where a claimant adds another claim to existing proceedings this was a matter for the tribunal as part of its case management powers. As such, no specific exemption was needed.

The issue of whether a claimant, by seeking to amend the claim, was trying to avoid early conciliation was a factor an employment tribunal could take into account when deciding to allow an amendment. However, the EAT did not consider that was determinative. This was because early conciliation was voluntary and the only information that was required was the name and address of the parties. It was for the tribunal to decide whether to accept the amendment or not. If it rejected the application, the claimant might then become a “prospective claimant” in relation to the new matter but if not, the early conciliation process was not relevant.

Had the subsequent claim been entirely unrelated to the existing proceedings, the tribunal might have rejected the amendment but that decision would have been influenced by a variety of factors, not just the lack of an early conciliation process. There was no error of law by the tribunal in allowing the amendment.