Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014. The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal – indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.
There are some exceptions to this rule – for example in cases of a claim being made against the Security Services, or another joint Claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule. It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant’s constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.
The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims – constructive dismissal and disability discrimination.
The Respondent initially argued that the Claimant’s constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.
The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal). The EAT rejected the appeal on the basis that under section 18A(1) of the Employment Tribunals Act 1996, the requirement to contact ACAS before commencing proceedings relates to ‘any matter’.
The EAT further cited the earlier cases of Drake International Systems Ltd and ors v Blue Arrow, and Science Warehouse Ltd v Mills, stating that the word ‘matter’ should be interpreted widely and may not include simply the exact facts of the claim but could also incorporate other events at different times/dates and/or involving different people. They stated that there was no obligation when a notification is made to ACAS, to identify the matter, the nature of any dispute and in particular the details of that dispute – the EC process is completely voluntary and confidential.
The EAT commented on the objectives of Parliament when implementing s18A(1) and advised that they could have specifically requested the matters complained of in subsequent proceedings to pre-date any relevant EC certificate, or indeed provided a time limit on the validity of an EC certificate but deliberately chose not to do so. Provided therefore that the individual notifies ACAS of the names and addresses of the parties concerned in the prescribed manner and there are issues between the parties named, this will be sufficient to satisfy the requirements of s.18A(1).
In the case in question, the claim was made in respect of a series of events that were in issue between the parties at the time of the EC process and subsequently the Claimant had satisfied the EC requirements regarding her claim – it was therefore allowed to proceed. Claimants should note however that an EC Certificate does not allow them to issue Employment Tribunal proceedings about unrelated matters – the EAT have stated that it will be a question of fact and degree in every case to decide whether the claim issued relates to the information that has previously been provided to ACAS.