Forms and certificates

Before starting tribunal proceedings, claimants have to submit separate early conciliation (EC) forms to Acas for each employer against whom they want to submit a claim. In De Mota v ADR Network and The Co-operative Group Ltd, the Employment Appeal Tribunal (EAT) held that even if the claimant fails to submit separate forms, that does not mean the EC certificate issued by Acas is invalid. 

Basic facts 

Mr de Mota was employed from 2012 until 2015 as an LGV driver for ADR which assigned him to work for the Co-op. After being “suspended” by the Co-op, he started work elsewhere. He subsequently submitted a completed EC form to Acas prior to lodging a number of tribunal claims. 

Under Rule 4 of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014, claimants are required to present a separate EC form for each employer (known as a respondent). However, Mr de Mota did not do this and simply wrote on the form that both ADR and the Co-operative Group were his employers.

Despite this, Acas issued him with a certificate, after which he submitted a tribunal claim which named ADR and the Co-op as two separate respondents, but with the same EC number. 

Tribunal decision 

At a preliminary hearing, the tribunal dismissed his claim on the basis that it did not meet the requirements in Rule 8 of the 2014 Regulations that the EC certificate must contain “the name and address of the prospective respondent” (singular), with “respondent” defined as “the person (singular) against whom proceedings are brought in the Employment Tribunal”. 

As his certificate did not name either the first or second respondent but “a non-existent entity” whose name was a combination of the two, he had not provided the “prescribed information” in the “prescribed manner”, as required under section 18A(1) of the Employment Tribunals Act (ETA) 1996. 

EAT decision 

Allowing the appeal, the EAT held that it was clear from recent case law that the purpose of the provisions was not to require or enforce conciliation nor to encourage satellite litigation, but to build in a “structured opportunity” for conciliation to be considered. As the focus of section 18A(8) of the ETA was on whether the prospective claimant actually had a certificate, the prohibition on bringing a tribunal claim applied only if they did not.

In any event, it was clear that Acas was not bound to reject the claim even if the prospective claimant did not provide the “prescribed information” in the “prescribed manner” under section 18(A)(1). Apart from anything else, if the parties or the tribunal itself could go behind the certificate, why would that only apply in respect of the completed form? It was therefore “inconceivable” that Parliament intended the parties to be able to mount any challenge in the subsequent proceedings based on these rules. 

It followed that the employment judge was wrong to “look behind” the certificate and find that Mr de Mota had failed to provide the “prescribed information” in the “prescribed manner” on the notification form. The judge was also wrong to hold that Acas had issued an unlawful certificate (as this was the logic of his reasoning) as Rule 4 only applies to the EC form, not the certificate that Acas issues. As there was no reason to imply a mandatory requirement relating to the EC certificate that was not in the rules, the certificate was valid.

The appeal was therefore allowed and the matter remitted to the tribunal to continue the proceedings.