Compass Group UK & Ireland Ltd v Morgan UKEAT/0060/16
There is a statutory early conciliation (EC) procedure that a prospective claimant must follow before commencing relevant proceedings in an employment tribunal, unless one of the limited exceptions applies.
Mrs Morgan, who has an anxiety disorder, was employed by Compass Group PLC (Compass). She alleged that in September 2014 she was instructed to work at an alternative location and in a less senior capacity. She submitted a grievance about this in October 2014, instructed solicitors and in November 2014 she entered Early Conciliation. ACAS issued an EC certificate in January 2015. On 18 March 2015 Mrs Morgan resigned and two days later filed an ET1 alleging, amongst other things, an unlawful failure to make reasonable adjustments and constructive unfair dismissal. Compass, in its ET3, argued that the tribunal had no jurisdiction to accept the ET1 in relation to the constructive dismissal complaint. This was because the requirement to trigger the EC procedure before bringing a tribunal complaint could not have been fulfilled since the resignation had not occurred at the time of the earlier EC process. Dismissal had not yet occurred at the time of conciliation.
At a preliminary hearing, the employment judge rejected Compass’ argument that prospective claimants ought not to be able to raise in their claim forms any cause of action that had not accrued at the date of notification to ACAS.
Compass appealed to the EAT arguing that allowing claimants to bring claims which ACAS could not have conciliated, because they post-date the triggering of the EC process, would defeat the objective of the EC scheme. The EAT unanimously rejected the appeal.
The EAT noted that the prospective claimant’s obligation to provide information to ACAS was limited to:
- the names and addresses of the parties;
- there was no requirement to outline what the matter is to ACAS, nor the nature of any actual or prospective dispute, or to provide factual details.
- EC was voluntarily and confidential, that is, there was no requirement to participate and so have any discussion with ACAS about the subject matter.
The EAT concluded that the legislation provided a structured opportunity for the parties to take advantage of ACAS conciliation, and that Parliament had deliberately used flexible broad language which should be given its ordinary meaning. There was nothing in the operation of the legislation to limit the scope of a particular EC certificate to events and allegations pre-dating the commencement (or conclusion) of the EC process.
What to take away
Employees may be required to register a claim with ACAS while still in employment to avoid missing a limitation period, and ahead of further matters which may then form a constructive dismissal situation. The EAT did caution that this should not mean that an EC certificate gives a claimant a right to bring proceedings about any unrelated matter and each case would be looked at on its particular facts.