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Early conciliation: the tide is turning towards a liberal interpretation
In this blog, Nathaniel Caiden of Cloisters considers the latest EAT case on the Early Conciliation (“EC”) requirements - Mist v Derby Community Health Services NHS Trust UKEAT/0170/15 (“Mist”) (for judgment click Mist-Judgment.pdf ) which was handed down today. He also analyses the approach that ETs are likely to take going forward.
Overview of the EC requirements
1. To understand the arguments that arose in Mist in relation to the EC requirements, advisors need to have a firm understanding of the EC procedure.
2. In nearly all cases, the employee will need to have gone ‘through’ EC before bringing their claim in the ET1. This is by virtue of primary legislation that sets out a requirement to “contact ACAS before instituting proceedings”: see s.18A Employment Tribunals Act 1996 (“ETA 1996”).
3. The few exempted cases where EC is not required are set out in reg.3 (1) of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“EC Regulations 2014”). The exemptions have been strictly construed by the EAT, even where there is a good reason to not use the EC process: see Cranwell v Cullen UKEATPAS/0046/14.
4. To be in time, it appears that EC must occur within the ‘original’ time limit for at the very least one of the claims: which is the natural reading of, for example, s.207B(3)-(4) of the Employment Rights Act 1996.
5. Step 1 of the EC process requires the claimant to fill in an EC form or telephone ACAS: see para 1 of Schedule 1 of the EC Regulations 2014 (“EC Rules”). The basic requirement, whether step 1 is initiated via a form or telephone call, is for the following information to be provided: “(a) the prospective claimant's name and address; and (b) the prospective respondent's name and address”.
6. As part of step 1, if there are multiple prospective respondents, they must all be named in the EC form, or if the process is by phone, each must be named: see para 4 EC Rules.
7. In the event that the name/address of the prospective parties is missing ACAS, “may reject a form that does not contain the information specified in paragraph (2) or may contact the prospective claimant to obtain any missing information”: see para 2(3) EC Rules.
8. Step 2 is that ACAS makes “reasonable attempts” to contact the prospective claimant: see para 5(1) EC Rules. This contact will obtain basic information as to the nature of the claim, but importantly (a) if the prospective claimant is not contactable or (b) indicates he/she does not wish to take part in EC the process is over: see para 5 EC Rules. In these circumstances an EC Certificate is produced.
9. Step 3 is that ACAS attempts to help parties reach a settlement: see para 6 EC Rules. The period allowed for this is 1 month from the beginning of the process, although this can be extended by up to 14 days if ACAS believes a settlement may be reached and the parties consent to it.
10. In the event that settlement is not reached, ACAS will issue an EC Certificate to the prospective claimant: see paras 7 and 9 EC Rules. For the avoidance of doubt, the EC Certificate will be issued even if either prospective claimant or respondent do not wish to conciliate, or are not contactable. It is therefore not the case that one must actually conciliate.
The EC Certificate
11. The EC Certificate is important as it contains an EC Number and failure to supply such in an ET1 will lead to the claim being rejected by the Employment Tribunal under Schedule 1 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2014 (“ET Rules”).
12. The information that must be shown on the EC Certificate is:
o the name and address of the prospective claimant;
o the name and address of the prospective respondent;
o the date of receipt by ACAS of the EC form or receiving the telephone call (i.e. step 1);
o a unique reference number given by ACAS;
o the date of issue of the certificate, which will be the date that the certificate is sent by ACAS;
o a statement indicating the method by which the certificate is to be sent.
13. If there is no EC Number provided or no confirmation is provided that none is required on the ET1, the ET will reject the claim and return it to the claimant explaining why it has been rejected: see para 10(1)(c) and 10(2) ET Rules (so called “rejection for failing to supply minimum information”). Notably this has been strictly applied by the EAT, so failure to provide the full EC number or a mistake in the number should lead to rejection: see Sterling v United Learning Trust UKEAT/0439/14.
14. There are also substantive reasons to reject an ET1 for a reason arising from the EC Certificate: see para 12(2)(c)-(f) ET Rules. These are that the ET1:
o does not contain either an EC Number or confirmation that one of the EC exemptions applies;
o incorrectly states that the one of the EC exemptions applies when it does not;
o name of the claimant on the claim form is not the same as the name of the prospective claimant on the EC Certificate to which the EC Number relates; and
o name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC Certificate to which the EC Number relates.
15. The substantive reasons for rejection however are to be determined by a judge (as opposed to tribunal staff, and so it should be referred to one if any of the points above appear to be relevant) at a pre-acceptance stage, and as with the ‘rejecting for failing to supply minimum information’, notice of rejection and its explanation will be sent to the claimant. Please note that there is no requirement that the respondent named on the ET1 is informed and it is not the practice of the Tribunals to do so. In relation to names/address of either parties in the ET1 not matching the EC Certificate, the judge will not reject the claim if he/she “considers that the claimant made a minor error in relation to a name or address and it would not be in the interest of justice to reject the claim”: para 12(2A) ET Rules. Again, there is no requirement for the judge to inform the respondent that compliance has been 'waived' in this way.
16. If a claim is rejected a Claimant can either apply for a reconsideration on the grounds that the decision to reject was wrong or rectify the defect (para 13(1) ET Rules).
17. No analogous procedure exists if the respondent wants to challenge the decision to accept the claim or a decision to 'waive' compliance.
The arguments in Mist.
18. In Mist, the Claimant sought to add the Respondent sometime after the claim had been started against a different NHS organisation. There had been a PH to determine whether the Respondent should validly be a party to the litigation. On appeal, the Respondent argued that it could never by a valid party to the claim because the ET did not have jurisdiction due to defects in the EC process; defects which were not raised by the Respondent at the time that the claim was served on it.
19. In Mist there were potential ‘problems’ surrounding the claimant’s EC Certificate and her ET1.
20. The EC Certificate and ET1 did not identify the prospective Respondent and Respondent in the same terms. In the EC Certificate it was “Royal Derby Hospital” (which was the address from which the Respondent carried out some of its activities) but the name of the Respondent in the ET1 was “Derby Hospitals NHS Foundation Trust”: see Mist at para . The argument raised in the cross-appeal was that the error was simply not one that was capable of rectification under para 12(2A) ET Rules (see above) and further that if the error was to be corrected it could only take place at the pre-acceptance stage governed by para 12: see paras  and . In other words, if the ET had wrongly accepted the claim without 'waiving' compliance at the pre-acceptance stage under para 12, there was no later opportunity to rectify the error. Accordingly, the ET did not have jurisdiction.
21. The EAT did not accept this argument for 4 reasons.
o It stated that the logical conclusion of the Respondent’s argument was that any error in name/address that a Claimant makes could never be corrected by an ET in the circumstances: see paras -.
o It further held that all a prospective claimant must do is give ACAS enough information to identify the prospective respondent, for example, a trading name. There was no requirement for the full legal title: see para . It seems to follow that the EC Certificate need only provide a name which allows the respondent to be readily identified.
o There was also a suggestion that as long as ACAS was satisfied with the information provided (which seemed to be the case here), then this was enough to mean that the EC Certificate was valid: see para .
o There was no need for any EC procedure when joining a party. This was because in joinder of party cases the claimant is no longer a ‘prospective’ but actual claimant and so the EC requirements are not engaged. The EAT went on to say that this was consistent with para 34 of the ET Rules which gives a general discretion to add parties without any apparent limitation created by the EC process: see paras -. It also stated that this conclusion was consistent with Science Warehouse Ltd v Mills UKEAT/0224/15 which held that there was a general power to permit an amendment to a claim even if it could not have been subject to the EC process since the relevant acts post-dated step 1 of the process: see para .
22. Interestingly, the EAT also suggested that the Respondent could only take the jurisdiction point as per s.18A ETA 1996, if raised at the stage that the ET decided not to reject the claim i.e. after the claim was accepted and sent to the respondent for its ET3. The Respondent was not entitled to take the point subsequently.
23. This seems to suggest that if a respondent does not take the point in the ET3, it could have difficulties. Since a respondent is not involved in the ‘rejection’ process (or notified of it) and not necessarily provided with the relevant EC Certificate (unless the claimant chooses to provide it or the ET sends it to the respondent following a direct request), this creates a very real practical problem for employers. If it provides any substantive response to the claim, but does not raise an EC point, it arguably misses its opportunity to take the jurisdictional point at all.
24. In light of Mist it appears that:
a) Slight inaccuracies in naming parties is unlikely to bar the Tribunal’s jurisdiction provided that it is obvious who the prospective respondent is intended to be;
b) The view of ACAS is relevant in this regard i.e. if ACAS felt that sufficient information was given and issued a certificate accordingly then this might have the indirect effect of waiving compliance; and
c) If a party has a valid claim, having gone through the EC process, it appears that amendments may be made to it, following ordinary principles, without the need for further EC compliance.
25. This case also seems to suggest that the tide may be turning for a more liberal interpretation of the EC requirements. This is important as the previous cases of Sterling v United Learning Trust UKEAT/0439/14 and Cranwell v Cullen UKEATPAS/0046/14 seemed to suggest to some that a pro-employer approach was being taken to non-compliance whereby there was little discretion within the regime for errors to be waived.
26. However, it should also be stressed that the EC regime is still likely to raise other issues and respondents may have more luck raising jurisdiction points if they do so as soon as they receive the claim form. Moreover, one significant area of uncertainty where there is still no appellant authority relates to the interpretation of the time-extending provisions.