Failure to do Acas Early Conciliation did not prevent the tribunal having jurisdiction to hear the Claimant’s claim when the claim has already been accepted
The first step to filing a claim in the Employment Tribunal (ET) is to start Acas Early Conciliation (EC). This is a mandatory requirement. You will need an Acas EC reference to complete the ET application form. The reference is only contained on a certificate issued by Acas after the EC period has ended.
However, what happens when a Claimant fails to undergo Acas Early Conciliation but the claim is accepted by the ET? In Abel Estate Agent Limited and others v Reynolds the Claimant did exactly this, where for a while the error was overlooked by both the tribunal and the Respondents and the claim was accepted and allowed to proceed. Months later, the Respondents realised this procedural error and brought it to the attention of the ET applying to have the case struck out. The ET rejected the claim under rule 12 of the Employment Tribunal Rules because of this procedural error. The ET then allowed the Claimant to amend her claim to re-commence identical claims, limiting the practical impact of the rejection.
The Respondents appealed, arguing the ET had erred by rejecting the claims under rule 12 rather than striking them out for lack of jurisdiction. The Employment Appeal Tribunal (EAT) agreed that the ET’s reliance on rule 12 was incorrect once the claim had been accepted, and that the claims should not have been re-commenced.
However, the EAT held that if a claim is not rejected at the preliminary stage for failure to carry out EC, it cannot later be challenged as improperly accepted using rule 12. Importantly, the EAT held that the Claimant’s failure to complete EC did not take away the ET’s jurisdiction to hear the claims. The distinction is that a prospective Claimant will have their claim rejected if they have not undergone EC, but once the ET accepts the claim, even in error, then this is no longer a barrier, and the claim will be allowed to proceed.
This blog was written by Anita Vadgama, Partner at didlaw.
