Background
This appeal concerned Ms. Elizabeth Reynolds’ failure to comply with the early conciliation requirement under section 18A of the Employment Tribunals Act 1996 (ETA 1996) before presenting part of her claims to the Employment Tribunal (ET). Ms. Reynolds, who acted in person, claimed unfair dismissal and made an application for interim relief after being dismissed on 6 April 2023. She alleged her dismissal was due to making a protected disclosure under whistleblowing provisions.
Her claims included:
1. Unfair dismissal under sections 111 and 103A of the Employment Rights Act 1996 (ERA 1996), which was exempt from early conciliation requirements.
2. A detriment claim under section 48 of the ERA 1996, which was subject to early conciliation but presented without an ACAS early conciliation certificate.
The ET initially rejected her section 48 claim under Rule 12 but permitted her to amend her claim to reintroduce it. The respondents, represented by counsel, appealed this decision.
Employment Appeal Tribunal (EAT) Judgment:
The EAT dismissed the respondents’ appeal and held that the ET had erred in rejecting Ms. Reynolds’ section 48 claim under Rule 12. Instead, it determined that the claim should proceed to a merits hearing. Key findings included:
1. Early Conciliation Requirements and Tribunal Jurisdiction:
- The EAT ruled that failure to comply with the early conciliation procedure does not deprive the ET of jurisdiction to hear the claim.
- Section 18A of the ETA 1996 encourages parties to consider conciliation but does not create an absolute bar to hearing claims presented without prior compliance.
2. Procedural Errors and Rule 12:
- The EAT held that rejecting the section 48 claim under Rule 12 was inconsistent with the decision in Clark v Sainsbury’s Supermarket Ltd [2023] ICR 1169, where the Court of Appeal emphasized that claims should not be dismissed for technical non-compliance if substantive justice can still be achieved.
3. Discretion to Strike Out or Dismiss:
- The EAT considered the respondents’ argument that the claim should have been struck out under Rule 37 or dismissed under Rule 27 for lack of jurisdiction. However, the EAT found no merit in these arguments.
- It noted that early conciliation is not intended as a punitive mechanism, and the oversight of the ET in initially allowing the claim to proceed should not prejudice the claimant.
4. Respondents’ Conduct:
- The EAT observed that the respondents failed to engage with the claims promptly after being notified. This lack of engagement undermined their contention that the non-compliance with early conciliation caused them any prejudice.
Key Takeaways for Trade Union Members and Representatives:
- Early Conciliation Non-Compliance: While early conciliation is mandatory, failure to obtain a certificate does not automatically bar claims from proceeding. Courts aim to balance procedural compliance with the overarching goal of achieving substantive justice.
- Employer Responsiveness: Employers must engage promptly with tribunal proceedings. Delay or non-engagement may weaken their position if procedural challenges are raised later.
- Protected Disclosures and Whistleblowing: Claims of detriment or unfair dismissal due to whistleblowing remain robustly protected, and claimants should not be discouraged from pursuing their rights due to procedural hurdles.
The EAT’s decision underscores its commitment to fairness, ensuring technical non-compliance does not unjustly prevent genuine claims from being heard.
Outcome:
The section 48 claim will now proceed to be heard on its merits, alongside the unfair dismissal claim. Trade union representatives should ensure members understand the importance of early conciliation while advocating for procedural fairness when technicalities arise.
