In Compass Group UK & Ireland Ltd v Mrs T Morgan UKEAT/0060/16/RN the Employment Appeal Tribunal faced the question as to whether it was open to an employee to claim constructive dismissal if the dismissal occurred after the issue of the Early Conciliation (EC) certificate.

Since May 2014 an employee must now go through the process of engaging in Early Conciliation through ACAS and must obtain an EC certificate confirming they have done so before they are able to present a claim. The whole point of the process is to encourage parties to settle before litigation is commenced.

In this case the employee (Mrs Morgan) had an acute anxiety disorder. She alleged that in September 2014 she was instructed to work at an alternative location in a less senior capacity. She was not happy and submitted a grievance. In November 2014 she entered into Early Conciliation and the EC certificate was issued on 3 January 2015. Two months later she resigned from her employment and a few days later she submitted a claim alleging, amongst other things, an unlawful failure to make reasonable adjustments. She also claimed she was constructively unfairly dismissed.

The Respondent argued that the constructive dismissal claim was invalid, as the alleged constructive dismissal occurred after the issue of the EC Certificate, and that any claim must first be notified to ACAS before it can be brought before a tribunal. This argument was rejected in a preliminary hearing and the Respondent appealed to the Employment Appeal Tribunal (EAT).

The EAT also rejected the Respondent’s argument. The EAT held that provided there are or were matters between the parties (whose names and addresses were notified to ACAS) and such matters were related to the proceedings instituted, that was sufficient for a claimant to be able to institute proceedings. In the current instance, Ms Morgan had contacted ACAS in the first place because of the alleged demotion and change in location and the constructive dismissal clearly related to those matters. The EAT observed that within the legislation itself Parliament had deliberately used flexible language and that there was no requirement to provide ACAS with the factual background to the dispute, one merely had to provide the names and addresses of the prospective parties. If Parliament had intended that future acts following the issue of the EC certificate could not form the subject matter of a claim, it could have expressly provided as such, but it was telling that it had not. The EAT also gave weight to the fact that Early Conciliation was a process that was voluntary and confidential in nature. There was no requirement for a prospective claimant to provide detailed facts to ACAS about the dispute or to engage in discussions.

This case makes it clear that running the argument that an EC certificate is not valid in respect of subsequent events is likely to be futile in most cases. That is unless it can somehow be shown that the matters in dispute between the parties at the time of the EC certificate were wholly different to those that arise thereafter and form part of the claim. From its judgment, it appears that this bar would be very high indeed for a Respondent. The EAT expressly stated that there would need to be a ‘compelling basis’ for challenging the validity of an EC certificate.

The decision by the EAT seems to make sense. It allows a claimant to avoid an unnecessary further procedural barrier, forcing them to repeat a conciliation process which has already been conducted. Employers looking to make challenges in relation to the ACAS process should be warned that it is going to be tricky to succeed in doing so.