Since May 2014 individuals who want to issue a claim in the employment tribunal generally have to go through ACAS early conciliation to see whether the matter can be resolved without the need for tribunal proceedings. The EAT has now confirmed that where the early conciliation process has been completed and a claim has been lodged, the claimant does not need to go through early conciliation again before they can amend their claim to include a new cause of action that has subsequently arisen.
The claimant went through early conciliation in early 2015 and subsequently issued a claim of pregnancy/maternity discrimination. When she received the employer's response to her claim, she applied to amend her claim to include a complaint of victimisation because of various allegations made in the ET3. The employer argued that the amendment should not be allowed because the claimant had not gone through the early conciliation process in respect of her new complaint.
The EAT concluded that a further attempt at early conciliation was not required before the claim could be amended. All an employee has to do is to provide ACAS with information about the "matter" that could give rise to a claim. Employees do not have to provide details about each cause of action that they may want to bring. Once a claim has been lodged, any application to amend that claim to include a new cause of action can be dealt with by the tribunal using its case management powers. There is no need for a second round of early conciliation, although if the new claim is unrelated to the existing proceedings, this could be a factor in deciding whether to allow the amendment.