In the recent case of Compass Group UK & Ireland Ltd v. Morgan UKEAT 0060_16, the EAT clarified the scope of matters that can be covered by a single early conciliation period when an employee's resignation, and later claim for constructive unfair dismissal, post-dated the early conciliation certificate.
The Claimant was employed by Compass Group UK & Ireland Ltd (Compass). She suffered from an anxiety disorder and, when she was asked to transfer to a different location to work in a less senior capacity, she felt aggrieved and brought a complaint.
The Claimant registered a potential claim with ACAS through its early conciliation (EC) procedure and ACAS then issued an EC certificate. Two months following receipt of the EC certificate, and after no action was taken to resolve her grievance, the Claimant resigned and filed an ET1 citing various claims. This included claims for failure to make reasonable adjustments in relation to a disability and for constructive unfair dismissal.
Compass argued the Tribunal did not have jurisdiction to hear the claim. It stated that, under section 18A(1) of the Employment Tribunals Act 1996, the Claimant had failed to follow the EC process for the claim for constructive unfair dismissal. It stated the EC certificate only covered disputes in existence at the time of the EC procedure. It argued that, as the Claimant resigned from Compass after the EC certificate had already been issued, the EC procedure the parties had already completed did not relate to this limb of her claim. Compass argued that prospective Claimants should not be able to raise any new claims in their ET1 if this cause of action has not accrued at the date that ACAS is notified. It called for a chronological approach to the matters that Claimants must notify ACAS of before issuing a claim. Compass argued that, without this approach, Claimants can bring claims which are not in existence at the time of EC.
The court's decision
The Tribunal found in the Claimant's favour and, when Compass appealed, the EAT agreed with the Tribunal. The EAT took a robust view and reiterated that the EC procedure is voluntary and there is no need for the prospective respondent to engage in the process if it does not wish to. Further, the prospective claimant is free to provide as much or as little information as it wishes, as long as it provides the names and addresses of the parties to the dispute. Therefore, the Claimant did not need to offer the factual details of the issues or any prospective dispute.
The basis of the EAT's decision was that the Claimant's claim for constructive unfair dismissal related to the facts in dispute at EC. It held that if a subsequent claim relates to the facts and matters in existence at the time of the EC certificate, then it would naturally come within the Tribunal's jurisdiction. The EAT took particular note of the scope of Parliament's language under section 18A(1) of the Employment Tribunals Act 1996 where it connects the EC procedure to a "matter" rather than a specific "claim". Therefore the process does not work in a way to limit the reach of an EC certificate to events pre-dating the commencement of the EC process.
The EAT decided there was no "chronological" test required, as submitted by Compass, but instead, whether the Tribunal had jurisdiction to hear the claim was a question of fact and degree. Essentially, it turned on whether the later claim related to events or disputes in existence or contemplation at the time of EC. In this case, it was clear that it did.
The employment tribunal has historically been less tolerant with issues about the scope of the EC procedure. However, it now appears that it is adopting a more flexible approach as, more often, claims will not be as readily dismissed for issues with the EC process. This is an interesting decision for claimants as sometimes it is necessary to register a claim when still in employment to avoid missing a limitation period. However, claimants should still err on the side of caution as the EAT made it clear that its decision did not give a claimant a "free pass" to bring proceedings about issues that do not relate to the dispute.
It is clear from this decision that the EAT is trying to create a precedent whereby parties are not duty bound to repeatedly refer disputes to ACAS where they are connected. Instead it is trying to adopt a practical approach, by taking a broad view of which issues will come within the "matter" before it, rather than unnecessarily encouraging satellite litigation.