When a worker wishes to pursue an employment tribunal it is mandatory for them to approach ACAS and obtain an certificate from ACAS that they have done so. Without a certificate the claim is invalid, except in a few exceptional circumstances and will be rejected. This applies even when the claimant has no interest in conciliation, as was the case in Cranwell v Cullen.
One of the the regular experiences when representing claimants in employment tribunals is as a case proceeds new evidence emerges and, sometimes, new possible claims emerge. When this situation has occurred I have taken the ‘err on the side of caution’ approach of getting a new EC certificate which is of course a waste of time both for me and for ACAS as litigation has already commenced and positions entrenched for the time being.
In Science Warehouse Ltd v Mills the question of whether a new certificate is required was considered. The claimant, Ms Mills, resigned from her employment and initiated a number of discrimination claims. Prior to doing so the claimant acquired the necessary ACAS Early Conciliation certificate.
However, in the Respondent’s response to the claim they argued that had the claimant not resigned they would have initiated misconduct action against the claimant. The claimant sought to amend her claim t add a claim that she had been placed to a detriment (the threat of investigation) because of her employment tribunal claim. That is, that the Respondent had victimised her contrary to section 27 of the Equality Act 2010.
There was no doubt that this was a valid claim, or that the claim was in time, but nonetheless the Respondent objected to the amendment on the basis that no early conciliation certificate had been received. The amendment was granted but the Respondent appealed, despite by the time of the hearing the claimant having procured the necessary certificate. It is not without irony that the Respondent’s reps, Peninsula Business Services, who have acted as cheerleaders for the introduction of ET fees and the cuts to employees access to justice because of ‘vexatious’ claimants should have persisted in arguing this case despite nothing on the case turning on the issue.
In any case, the outcome of the case was that the EAT determined it is not necessary that a certificate been issued in respect of every claim and it is within an Employment Judge’s discretion to accept an amendment to a claim with an extant ACAS EC certificate. The judgement being based on the fact that the Employment Tribunals Act 1996 does not refer to “cause of claim” but simply matter.
Although the judgement does indicate there may be limits to this discretion where the amendment is “entirely unrelated to the existing proceedings” it also provides some comfort that where an amendment is sought it should not be refused because the bureaucratic hurdles of ACAS early conciliation have not been navigated.
Cases Referenced:
Cranwell v Cullen [2015] UKEAT 0046_14_2003
Science Warehouse Ltd v Mills [2015] UKEAT 0224_15_0910
