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NICHOLAS SIDDALL ON ACAS EARLY CONCILIATION: ‘MUCH ADO ABOUT NOTHING’

Nicholas Siddall analyses the recent decision of the EAT in De Mota-v-ADR Network & Anor [2017] UKEAT 0305/16.

The EAT in the recent past has adopted a clearly defined approach of not allowing the ACAS Early Conciliation (“EC”) procedure to become a ready means of preventing claimants from advancing their claims before the Employment Tribunal. Indeed repeated references in various judgments demonstrate a number of judges - scarred by their need to address the late (non-lamented) statutory dismissal procedures - keen to avoid similarly technical points from driving claimants from the judgment seat.

It is suggested that the reasoning of HHJ David Richardson in De Mota did not deviate from this general approach and demonstrates a further example of the EAT’s desire to see substance triumph over form.

The issue in De Mota raised can be stated shortly. Did the rule requiring a separate early conciliation form for each respondent to a claim mean that the early conciliation certificate was invalid if had been issued notwithstanding a breach of that rule?

The Facts

The facts of De Mota were as follows. The Claimant had sought to comply with the EC procedure. However instead of completing a separate EC form for each proposed Respondent he had listed two - connected - Respondents on one form. This was an accepted breach of Rule 4 of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014. However ACAS had not raised this as an issue and had issued an EC Certificate naming both Respondents at the same address. On the issue of the ET1 the Respondent disputed the Employment Tribunal’s jurisdiction to consider the same on the ground of a failure to comply with the EC procedure and was successful before the Employment Tribunal. The Claimant appealed.

The Decision

HHJ Richardson was in no doubt that the Employment Tribunal enjoyed jurisdiction to consider the claim and allowed the appeal. He found that it was not open to the Employment Tribunal to go behind the EC certificate – even if issued in error. He also made the following useful observations as regards the intentions behind the EC scheme:
  1.  The purpose of the early conciliation provisions is limited. It is not to require or enforce conciliation; it is simply to build in a structured opportunity for conciliation to be considered;
  2. It is no part of the purpose of the EC provisions to encourage satellite litigation;
  3. It is clear that Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the Employment Tribunal;
  4. There was a distinction between an erroneous as compared with an unlawful certificate issued by ACAS.


The founding logic of HHJ Richardson’s decision is suggested to be found in the following passage of his judgment

44.            I see no reason to imply into the Early Conciliation Rules of Procedure a mandatory requirement relating to the early conciliation certificate which is not found in the Rules, especially where the effect would be to bar access to the legal system for a litigant based on a technicality.  It is one thing to impose a requirement for good order; another thing altogether to elevate it to such a height that it bars access to the courts.  I have explained the purpose of the early conciliation provisions.  Nothing in that purpose suggests that it was the intention of Parliament to impose a jurisdictional requirement that the early conciliation certificate should relate only to one respondent…

Conclusion

There is a tremendous temptation on the part of a Respondent to take procedural points as to EC compliance as the effect of the same can be to bar a claim. However this is a yet further example of the EAT pouring cold water on such an approach. It is suggested that the learning to be taken from this decision is that opportunistic and technical points are to be avoided by Respondents. It is only if a failure in EC substantively affects the litigation and wholly undermines compliance with the EC procedure that an Employment Tribunal (and the EAT) will entertain such points.

Posted: 20.09.2017 at 12:26
Tags:  Comments  Employment Law
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