Yes, held the Employment Appeal Tribunal (EAT) in the case of Abel Estate Agent Ltd and Others v Reynolds. The Claimant’s failure to complete early conciliation did not deprive the Tribunal of jurisdiction to hear the claims.
Early conciliation requirements
Before making a claim to the Employment Tribunal (ET), a person is generally required to contact ACAS and go through early conciliation in an attempt to reach a settlement. If this is unsuccessful, they receive an early conciliation certificate, allowing them to present a claim to the ET. Typically, claims that haven’t followed this requirement will be rejected.
Background
After being dismissed by the First Respondent, Ms Reynolds brought claims for, among other things, whistleblowing detriment under Section 48 of the Employment Rights Act. She did so without first going through ACAS early conciliation. Under ET rules, a claim should be rejected if it does not contain an early conciliation number. In this case, the ET failed to notice this error and did not reject the claim.
Later, at a case management hearing, the Respondent asserted that, due to the Ms Reynold’s failure to present an early conciliation certificate, the claim should be rejected under Section 18A(8) of the Employment Tribunals Act 1996. This states that a person who is required to contact ACAS cannot submit a claim without this certificate.
The ET initially rejected the claim but allowed Ms Reynolds to amend it and re-commence identical whistleblowing detriment claims. The amendment effectively cancelled out the rejection of the claim.
The decision
The Respondent appealed, and the Appeal Tribunal concluded:
- The ET had erred in its decision to reject the claim.
- The ET should have considered whether to dismiss the whistleblowing detriment claim for lack of jurisdiction, or strike the claim out for the same reason.
- However, Ms Reynold’s failure to comply with the early conciliation requirements did not deprive the Tribunal of the ability to hear the whistleblowing detriment claim.
The appeal judge interpreted Section 18A, which requires contacting ACAS before starting proceedings, as constituting an obligation on a prospective claimant to consider using ACAS conciliation. Section 18A(8) was not seen as affecting the Tribunal’s competence to act if a claim was submitted without the claimant engaging in early conciliation. Instead, the prohibition on presenting a claim was said to be directed solely to the prospective claimant.
Comment
This case clarifies that the rejection of claims at an early stage, when early conciliation has not been considered or initiated, is not due to the ET’s lack of jurisdiction, but rather to encourage settlement between the parties.
Although this case initially slipped through the cracks, with the Tribunal failing to notice the missing early conciliation, the appeal judgement confirms that the Tribunal remains competent to hear such a case. Therefore, a claimant’s failure to undertake early conciliation may not always be a fatal flaw.
This case also highlights the importance of ACAS as a tool for resolving workplace disputes. Conciliation is most effective before legal proceedings begin, after which the parties may become more entrenched in their positions and less likely to compromise.
Published 26 February 2025
