The EAT has held that a claimant was not obliged to complete a separate early conciliation process in order to add a new claim to a matter involving existing, connected, claims. Whether this approach is applied more widely is subject to the general case management powers of the Tribunal in each individual claim, and will, therefore, be fact-specific (Science Warehouse Ltd v Mills).
Background and facts
Before bringing Employment Tribunal claims, prospective claimants are required to comply with the Acas Early Conciliation (EC) procedure. After completion of the EC procedure, Acas will issue a certificate to the prospective claimant, without which they cannot bring their claim.
In this case, the Claimant was employed by Science Warehouse Ltd (SWL) until she resigned whilst on maternity leave. She initiated EC concerning prospective claims for discrimination because of sex, and pregnancy and maternity.
SWL alleged that, had the Claimant not resigned, she may have been disciplined due to a conduct issue that arose during her maternity leave. In response, the Claimant applied to amend her ET1 to include a claim for victimisation, alleging that lodging her ET1 was the "protected act". The Tribunal accepted the Claimant's application. SWL appealed to the EAT, arguing that EC procedure had not been followed in relation to the victimisation claim.
The EAT rejected the appeal, holding that:
- prospective claimants are required to undergo EC for each individual "matter", not each claim or cause of action, which is narrower wording;
- the relevant legislation adopts a wide definition of "matter";
- the only essential information for EC is the name and address of the intended respondent, not a breakdown of each claim;
- where a claimant is seeking to amend a claim, as in this case, this falls within the Tribunal's general case management powers. The Tribunal's powers in this regard are wide, and include the ability to allow claims that would be out of time ordinarily; and
- if an individual claim were entirely new and unrelated to the facts of the 'matter', then the Tribunal may simply decline the application to amend the ET1. It is, as the EAT said, "simply a matter of case management".
The key in this case was that the Tribunal used its case management powers to include the new claim, due to its links with the existing facts of the matter. Therefore, if facing an application to amend the ET1 to add more claims, you should attempt to differentiate the new claim from the established facts of the matter.