Since May 2014 those 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. Somewhat surprisingly, this applies to claims under regulation 11 of TUPE – breach of the duty to provide employee liability information before a business transfer.  

The claimant company in Drake International Systems Ltd v Blue Arrow Ltd had taken over the business of managing port workers under a TUPE transfer.  After the claimant had been through the early conciliation process it issued regulation 11 proceedings against the transferor.  When the transferor said that its four subsidiaries should be the respondents, the claimant successfully applied under the employment tribunal rules to amend its claim to substitute the subsidiaries for the parent company.  The subsidiaries then argued that early conciliation should have been carried out with them. 

The EAT rejected this.  A reference to ACAS for early conciliation is required, before proceedings are instituted, in respect of "prospective" claimants and respondents.  Here, proceedings had been instituted and the claimant was no longer prospective, so no new reference was needed. The early conciliation process does not require contact with the respondent unless the claimant agrees.  The requirement is merely to provide ACAS with information about the "matter" that could give rise to a claim and the claimant had done this.

A similar approach was taken in Science Warehouse Limited v Millslast year – the  EAT confirmed that a claimant did not need to go through early conciliation before she could amend her tribunal claim to include a new claim of victimisation.