Acas Early Conciliation - Amendments to ET Claims

In recent years, the settlement of disputes of various kinds by voluntary dispute resolution has grown considerably in the UK. That is certainly so in employment cases where, since May 2014, it has been a requirement under the Employment Tribunals Act 1996, unless an exemption applies, for a potential claimant to first notify the Advisory, Conciliation and Arbitration Service (Acas) by completing an Early Conciliation (EC) notification form. An Employment Tribunal (ET) claim will not be accepted unless this procedure has been followed and a formal EC certificate has been issued.

As more cases go through the system, the impact of the EC arrangements is becoming clearer.

In Science Warehouse Limited v Mills, the Employment Appeal Tribunal (EAT) was called upon to decide whether the ET was bound to decline to allow an amendment to add an additional claim where that could not have been the subject of the original EC process.

Ms Mills worked for technology company Science Warehouse Limited for about two years before she resigned whilst on maternity leave. She presented a claim to the ET on the ground that she had been discriminated against by reason of her pregnancy, contrary to the Equality Act 2010. She had notified Acas of that claim and been issued with an EC certificate.

Her employer's response to her claim included a statement that, had she not resigned, Ms Mills would have been subject to an investigation and possible disciplinary action in respect of a conduct issue that had come to light during her maternity leave. Details of the misconduct in question were also set out.

Ms Mills subsequently sought to amend her claim to include a complaint of victimisation in respect of the new allegation made against her. An EC certificate was not obtained in respect of that new claim and Science Warehouse argued that she should thus be barred from pursuing it further. That argument did not persuade the ET, which permitted the amendment.

In dismissing Science Warehouse's challenge to that decision, the EAT was satisfied that, whilst it is necessary to obtain an EC certificate prior to commencing ET proceedings, doing so is not a prerequisite for an amendment application. Although the victimisation claim was new, it was related to an existing matter already before the ET and there was, therefore, no need for Ms Mills to go through the entirely technical exercise of consulting Acas for a second time. It was simply a matter for the ET, exercising its case management powers.

The EAT rejected the argument put forward by Science Warehouse that such a ruling would permit new claims to be added to existing proceedings by way of amendment, thus avoiding the EC process, as it was open to the ET to consider this possibility as a relevant factor when deciding whether or not to allow an amendment.

The EAT's ruling enables Ms Mills to proceed with the entirety of her claim.

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