Do you need separate ACAS Early Conciliation Certificates for each Respondent?

de Mota v ADR Network Ltd and The Co-operative Group Ltd

Our next case concerns Early Conciliation (EC). Section 18A of the Employment Rights Act 1996 requires prospective Claimants to complete ACAS Early Conciliation by providing the correct information to complete an EC form and upon completion obtain an EC Certificate with a valid reference number.

The information needed for a valid ACAS EC form and Certificate is laid out in the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014. This includes the legal name and address of the Claimant and Respondent.

The question in this case is:

Do you need separate ACAS Early Conciliation Certificates for each Respondent?

Mr de Mota, the Claimant, was a Portuguese LGV Driver, English was not his first language. The Claimant was contracted to work for ADR, the First Respondent, who then assigned him to work for the Co-op, the Second Respondent. The Claimant worked at the depot of the Second Respondent which is also a business address of the First Respondent.

The Claimant was disciplined by the Second Respondent following an incident at one of their stores. The Second Respondent then allegedly instructed the First Respondent not to supply the Claimant to work for them.

The Claimant alleges he was dismissed and initiated ACAS Early Conciliation. He completed the online form. He filled in Respondent’s name as ADR Network Ltd and The Co-op Group Ltd and used the depot address.

All Claimants who complete an EC online form must tick a box to confirm they have read the ‘Important Information’. This information states that if there was more than one employer, the Claimant would need to complete a separate form for each one.

Despite not completing a second form for both the respondents, ACAS began EC and issued a certificate. The Claimant then issued a claim using the EC Reference number on the certificate. The Respondents, who refuted the Claimant had employment status, argued the claim should be struck out because the Claimant did not have separate EC Certificates for each Respondent.

The ET held that the Claimant had not complied with Section 18A and the claim was dismissed. The Claimant appealed and the EAT allowed the appeal. The EAT held that despite not providing the information in the prescribed manner – naming two respondents on one form – the ACAS Certificate should be accepted.

The takeaway point:

Yes, in this case the certificate was valid because it had a valid number and issue date. Despite naming two Respondents – who both used the same address – the claim was allowed. However, had ACAS spotted their mistake and not issued the certificate, it is likely the claim would fail as the Claimant would have run out of time to re-start EC and bring a claim.

Once again this exemplifies how the judiciary are taking a more relaxed attitude towards EC and it is now possible to have a certificate issued without going through conciliation. This increases the chance of claims being issued against employers as EC rules are now quite relaxed.