Since May 2014, claimants have been required to complete the Acas early conciliation procedure before issuing an Employment Tribunal claim. The legislation dealing with early conciliation requires the prospective claimant to give their name and address, and the name and address of any prospective respondent to Acas. The rules could, in principle, be interpreted to suggest that a claimant who makes an error might be prevented from pursuing their claim.
Employment Appeal Tribunal
Two recent Employment Appeal Tribunal cases have confirmed that the decision to allow amendments to existing claims is a matter for the Tribunal’s general case-management powers and is unlikely to require a fresh application for early conciliation.
In Science Warehouse v Mills (UKEAT/0224/15/DA), the EAT held that early conciliation is not necessary to amend an existing claim to include a new, but related, cause of action.
In Mist v Derby Community Health Services NHS Trust (UKEAT/0224/15), the EAT held that early conciliation is not necessary to include a new respondent where there was a discrepancy between the name of the prospective respondent given on an EC certificate and the name on the ET1.
Ms Mills was employed by Science Warehouse from April 2013 until she resigned, during maternity leave, in March 2015.
In January 2015, Ms Mills informed Acas of details of prospective sex and pregnancy/maternity discrimination claims under the Equality Act 2010 to Acas. She received an early conciliation certificate in February and lodged her claim to the Employment Tribunal in April 2015.
Science Warehouse’s response to the claim included an allegation that Ms Mills would have been investigated for disciplinary action over a conduct issue that came to light during her maternity leave. Ms Mills felt that this allegation was retaliation for her complaining of discrimination and sought to add a victimisation claim to her existing claim.
The tribunal allowed the victimisation claim to be added without requiring Ms Mills to restart the early conciliation process or pay another Employment Tribunal issue fee. Science Warehouse appealed the decision to allow the amendment. The EAT refused to interfere with the tribunal’s decision and the claim proceeded.
Early conciliation applies to any ‘matter’ not ‘cause of action’ or ‘claim’
Her Honour Judge Eady QC held that the information given to Acas did not need to set out formally each cause of action. Without this broad interpretation, the early conciliation rules would give rise to disputes and satellite litigation as to whether proper notification had been given of every possible claim subsequently made to the tribunal. Amendments to claims are a matter for the tribunal to decide, using their case management powers.
Mist v Derby Community Health Services NHS Trust
In May 2014, Mrs Mist commenced early conciliation against ‘the Royal Derby Hospital.’ In July 2014, she commenced various Employment Tribunal claims against Derby Community Health Services NHS Trust (the correct name for the hospital trust). It was not until receiving the respondent’s response that Mrs Mist became aware of the correct name for the transferee and made an application to join the community health trust as a second respondent. The tribunal refused the application to amend.
Minimal prejudice caused by amendment to second respondent against greater prejudice to the claimant
The EAT confirmed the principles set out in Science Warehouse Ltd v Mills. The application to join the community health trust as second respondent was considered as an amendment to her existing claim, consistent with the overriding objectives of early conciliation, the purpose of which is to give Acas sufficient information to make contact with the prospective respondent, if the prospective claimant agrees to conciliate. It does not set a higher bar.
When applying the principles set out in Selkent Bus v Moore  (IRLR 661), the paramount consideration is to weigh the relative injustice to each party in granting or refusing the amendment. The tribunal had incorrectly focused on the absence of an explanation from Mrs Mist for the failure to include the second respondent. The correct approach is to consider the greater prejudice to the claimant.
These are among the first appellate judgments on the interplay of early conciliation and amendments to claims. The EAT’s decisions reflect the Employment Tribunal’s broad brush approach to early conciliation instead of striking out claims on a technicality. This avoids undue burdens on either the parties or Acas. However, it does leave an element of uncertainty for claimants, as permission to amend will remain a matter for judicial discretion.
Therefore, it may be sensible for some claimants to start early conciliation for a new claim arising after proceedings have been issued with a different set of facts and circumstances to the existing claim. Had the subsequent claim been entirely unrelated to the existing proceedings then the Tribunal might have refused to admit it, but that decision is informed by a variety of factors, including the case law principles set out in Selkent.
The cases should serve as a warning to respondents that they are unlikely to be able rely on a technical breach of the early conciliation rules to defend a claim.
For more information on Acas early conciliation or any of the other issues raised in this article or on employment law in general, contact our Employment team.