The Court of Appeal (CoA) ruled that the statutory requirement for ACAS early conciliation is a jurisdictional precondition to the power of the Employment Tribunal (ET) to hear a claim, while simultaneously affirming the tribunal’s discretion to permit an amendment to the claim, thereby allowing a jurisdictionally defective claim to proceed.
Facts:
Ms. Reynolds, an estate agent working for the property management business Abel in Hertford, was dismissed on 6 April 2023 on a stated ground of redundancy. On 12 April 2023, six days after dismissal, she presented claims to the ET alleging automatic unfair dismissal and subjection to detriment as a consequence of whistleblowing under sections 103A and 47B of the Employment Rights Act (ERA) 1996.
Due to uncertainty about the true identity of her employer, she named all three Abel companies and three individuals involved in management as the six respondents. She included an application for interim relief, which provided an exemption from the requirement to notify ACAS for the unfair dismissal claim. However, the claimant did not invoke the ACAS early conciliation process at all for the detriment claim, meaning she failed to provide the required Early Conciliation Number (ECN) on the claim form, which constituted a substantive non-compliance with Section 18A of the Employment Tribunals Act (ETA) 1996.
Despite the detriment claim being non-compliant and due for rejection at the gateway stage under Rule 10, it was erroneously accepted by ET staff. The appellants raised an objection concerning the missing ECN at a case management hearing on 20 September 2023, where Employment Judge Crosfill belatedly rejected the detriment claim but immediately granted the claimant permission to amend the claim form to cure the defect and reinstate the claim. The appellants appealed this decision to the Employment Appeal Tribunal (EAT), and subsequently to the CoA, arguing that the failure to obtain an ECN effectively deprived the ET of jurisdiction to hear the detriment claim.
Decision:
The CoA dismissed the appeal, and the claimant was thus entitled to pursue the detriment claim. The CoA concluded that the requirements of Section 18A of the ETA are jurisdictional and were not satisfied by the claimant’s detriment claim. However, the ET retains a discretionary power to permit amendment under its case management rules, and such an amendment may cure the jurisdictional defect where the amended claim is closely connected to existing proceedings.
Implications:
This decision clarifies the distinction between substantive non-compliance with ACAS early conciliation requirements (which engages a jurisdictional bar and renders a claim initially unchallengeable) and the ET’s residual case management discretion to permit amendment to cure such defects. The ruling affirms that Section 18A early conciliation requirements are jurisdictional but does not render all non-compliant claims permanently unhearable if an amendment is appropriately granted. It reflects judicial concern to avoid harsh outcomes in cases where procedural defects are discovered late, while maintaining the importance of the statutory early conciliation process.
The CoA has confirmed that Section 18A of the ETA 1996 sets a strict precondition for the presentation of Employment Tribunal claims. However, the case drew an important distinction between instituting proceedings and subsequent amendments to claims.
