Employment Appeal Tribunal allows claim to be pursued which arose after the ACAS Early Conciliation Certificate

Can an ACAS Early Conciliation Certificate cover a claim which has not arisen before the date of the Certificate (or even before ACAS were first contacted)?

“Yes”, said the Employment Appeal Tribunal in Compass Group UK and Ireland Ltd v Morgan.

With rare exceptions, a prospective claimant must contact ACAS before presenting any claim to the Employment Tribunal. It is not difficult to do so – it can be done online or by a simple telephone call – and all the prospective claimant has to provide is his or her name and address and his or her employer’s name and address and contact details. So long as the prospective claimant consents, ACAS will then contact the employer  to see whether any dispute can be conciliated. If it cannot, if subsequent discussions are unsuccessful or if thirty days have elapsed, ACAS issues a Certificate and its reference number must be included on the ET1 Claim Form – otherwise the claim will be rejected by the Employment Tribunal. (The conciliation period can also be extended with the consent of both parties).

Mrs Morgan claimed that a location move and what she saw as a demotion in August 2014 amounted to disability discrimination. She went off on sick leave and later lodged a grievance with her employers who in spite of a “chaser” from her solicitors took no action to progress that grievance. Mrs Morgan commenced Early Conciliation in December 2014 and a Certificate was issued in January 2015. When there was still no action taken to deal with her grievance, Mrs Morgan resigned in March 2015 and claimed that she had been constructively dismissed.

Her employers argued that the Employment Tribunal did not have any jurisdiction to consider her unfair dismissal complaint because, they said, Mrs Morgan had not complied with her obligation to contact ACAS about that claim. The Employment Tribunal disagreed, finding that “there was a connection between the factual matters complained about in the claim form and matters which were in dispute at the time of the Early Conciliation process”.

Her employers appealed to the Employment Appeal Tribunal, contending that, as a matter of construction of Section 18A(1) Employment Tribunals Act 1996, an Early Conciliation Certificate could only cover disputes arising out of facts in existence when the Early Conciliation Procedure was instigated. Since in Mrs Morgan’s case, the resignation took place three months after the start of Early Conciliation, the Certificate could not cover her constructive dismissal claim.

As an argument, this could have some odd results. Take, for example, an employee objecting to a series of unlawful deductions who tried to conciliate. After receiving a Certificate, his employer made another unlawful deduction. Why would Parliament have intended the employee to be duty bound to go to ACAS again – a pointless and futile gesture? And if the employee resigned because of the latest unlawful deduction, why would the position be any different? What about something arising during the Conciliation period? Here, the employer’s case shifted ground during the appeal, moving from a proposed guillotine of the date of instigating Early Conciliation to the date of the Certificate and in the course of argument conceding further that something obviously in contemplation would also be covered even if it had not occurred before the Certificate although, apparently, dismissal would be different (but quite why was never satisfactorily explained).

However, this is a problem which has been troubling Employment Tribunals at first instance with an equal number of decisions for and against, so appellate guidance was badly needed.

The Employment Appeal Tribunal, presided over by its President Mrs Justice Simler, took a healthily robust attitude to the employer’s case. Emphasising that jurisdictional challenges to the cover provided by an Early Conciliation Certificate should be few and far between, it held that if the subsequent claim related to facts and matters in existence at the time of the Early Conciliation Certificate then the Employment Tribunal would have jurisdiction.

In Mrs Morgan’s case, that was clearly so because she had been complaining about all of the matters that she relied on subsequently to argue that there had been a “last straw dismissal” and, indeed, had been telling her employers that they were in breach of contract because they had not dealt with her grievance promptly and fairly before the Early Conciliation process had started.

There was no “chronological” test, as the employers had argued but a question of impression, fact and degree for the Employment Tribunal to assess whether the issues in the subsequent claim related to events or disputes in existence or contemplated at the time of Early Conciliation.

Compass Group UK and Ireland Ltd v Morgan  UKEAT0060/16/RN  26th July 2016.

(Nigel Moore successfully represented Mrs Morgan in the London South Employment Tribunal and in the Employment Appeal Tribunal, instructed by Irwin Mitchell LLP)