Early Conciliation - How relevant is it to an application to amend a claim?

In January 2015, whilst on maternity leave, Ms Mills commenced the ACAS Early Conciliation process (EC) against her employer, Science Warehouse Ltd. Following unsuccessful EC, ACAS issued a Certificate on the 27 February. Ms Mills then resigned from her job in March. On 8 April 2015 she presented an ET1 to the Tribunal in which she claimed she had been subject to discrimination because of pregnancy or maternity.

In the Respondent’s Grounds of Resistance it stated that had the Claimant not resigned she would have been subject to an investigation and potentially to disciplinary action in respect of a conduct issue that had come to light during her maternity leave.  In response to this allegation the Claimant made an application to the Tribunal to amend her claim to include a new, but related claim for Victimisation in that her ET1 was a protected act and that she had suffered a detriment as a result of the allegation.

The Respondent objected to the amendment solely on the basis that the Claimant had not complied with the EC process in respect of this new cause of action.  The Tribunal allowed the inclusion of the amendment, holding that an EC Certificate is not a prerequisite of an amendment application.

Unhappy with the Tribunal’s decision, the Respondent appealed. However the EAT agreed with the Tribunal’s decision and clarified that the power to permit an amendment to a claim is a matter of judicial discretion and, as per previous case law, able to be based upon a cause of action postdating the presentation of the ET1 itself.  

The requirements of Early Conciliation

S18A of the Employment Tribunals Act 1996 requires a Claimant to contact ACAS to initiate EC and either present an early conciliation form to ACAS, which provides certain prescribed information or telephone ACAS to provide this information. In considering the Respondent’s argument regarding the validity of the existing EC Certificate the EAT made the point that the prescribed information required is simply the name and address of the parties and not details of the complaint or dispute.

Amending the Claim

In deciding whether to allow an application to amend a claim, the ET is to exercise its case management powers under Rule 29 of the ET Rules 2013 and, apply the leading case of Selkent Bus Co Ltd v Moore [1996]. This case provides that the Tribunal must carry out a careful balancing act of all the relevant circumstances, including the nature of the amendment, the applicability of time limits and the timing and manner of the application. Considering these points, the EAT took the view in this case that the application was made in good time.

The EAT did comment that had the subsequent claim been entirely unrelated to the existing proceedings then the Tribunal might have refused to admit it but that the decision would have been decided on a number of factors not just that no EC process was engaged in.

Surprisingly, the fact that the victimisation claim could not have been the subject of earlier EC process (because it only came to light in the Respondent’s Grounds of Resistance) was not a determining factor in the application.

What does this mean for you or your business?

The clearest lesson from this case seems to be to carefully consider what information you include in the Grounds of Resistance, as established case law provides that an amendment may be allowed to add a new claim base upon a cause of action postdating the ET1 (as was the allegation in the ET3 of misconduct in this case).

What do you need to be doing now?

Should you receive an application to amend where the element of claim was not discussed during EC, don’t be afraid to site this in your resistance to the application.  Do ensure however that you make clear representations on the nature of the amendment sought, the applicability of time limits, timing and manner of the application and the Tribunal’s Overriding Objectives.

If a Claimant seeks to add an entirely new cause of action to their claim, it may still have to comply with the requirements of EC given how fact relevant the EAT’s decision was in this case.  It could still be worth challenging any request to add a cause of action on the grounds of failure to start EC.

These notes have been prepared for the purposes of articles only. They should not be regarded as a substitute for taking legal advice.