Since May 2014 claimants have only been able to lodge most types of tribunal claim if they have given specified information about "that matter" to ACAS and obtained an early conciliation (EC) certificate. The novel point before the EAT last week was whether a claimant could bring proceedings in relation to a matter even if the cause of action arose after the EC certificate had been issued. The EAT said that there was no reason why they should not.
In October 2014, the claimant raised a grievance about a transfer to a new work location in a less senior capacity. She entered EC in November 2014 and an EC certificate was issued in January 2015. Two months later the claimant resigned from her employment and lodged an ET1 alleging constructive dismissal and a failure to make reasonable adjustments. The respondent argued that because the alleged dismissal had not occurred when the EC certificate was issued, the claimant had not complied with the EC requirement in relation to the unfair dismissal claim and the tribunal did not have jurisdiction to hear it.
Neither the tribunal nor the EAT agreed with that argument. The EC rules do not require a claimant to notify ACAS of the nature of any actual or prospective dispute. All a claimant has to do before instituting "relevant proceedings" relating to any matter is give ACAS specified information (such as the names and addresses of the claimant and respondent) about that matter. Provided that there were "matters" between the parties whose names and addresses were notified and those matters were related to the proceedings instituted, that was sufficient. If Parliament had wanted to provide that an EC certificate could not pre-date the cause of action complained of, it could have done so.
Here the claimant had relied on breaches of the duty of implied trust and confidence in her claim form, and these formed part of the matters notified to ACAS as part of EC. Claims about a failure to deal with her grievance appropriately and constructive dismissal were connected with the factual matters in dispute at the time of the EC process, even though they happened subsequently. Given that connection, there was no need for the claimant to go through a further EC process before bringing her claim.