Welcome back to your weekly case law update. Last week  we looked at tribunal procedure and the correct identity of employers. One procedural case of the identity of the legal parties was not enough, we have doubled down and done another, this time looking at ACAS Early Conciliation.

Parties are required to notify ACAS of a prospective claim before submitting a tribunal claim. Upon obtaining an ACAS Early Conciliation certificate ANY Claimant needs to have a valid ACAS reference number on their ET1 form for their claim to be accepted.

This case is one of many long-running equal pay claims against major supermarkets whereby largely female employees, shelf-stacking in store, are claiming equal pay to largely male shelf-stacking employees in the warehouse. Due to the number of Claimants there were a variety of different ACAS certificates. Some ACAS certificates had individual reference numbers for individual Claimants. Some had multiple reference for groups of Claimants. Some were hybrid and had both multiple and individual ACAS reference numbers.

The Claimants had all completed ACAS Early Conciliation and completed their ET1s on numerous claim forms. Most of the claim forms were submitted in 2015. Some of the claim forms were individual, some were multiple Claimants using the same claim form. In multiple claims the ET1 only had provision to put additional Claimant contact details but not individual ACAS reference numbers. The Respondent, Sainsburys, sought a strike out application on the ground that many of the multiple claim forms only had one ACAS reference number, not reference numbers for each individual Claimant.

The tribunal allowed part of the strike out application. It held where the claim form had a multiple reference number, any Claimant covered by that reference number should not be struck out. However, if the claim form only included an individual reference number, any claim form should be dismissed on the basis that they did not include individual, or multiple, reference numbers for each Claimant. This resulted in many of the claims being dismissed.

The Claimants appealed. They argued that the Tribunal had erred in law and that having one valid ACAS reference number was sufficient for all Claimant’s on the claim form irrespective of whether the reference number was for multiple Claimants or individual reference numbers. The EAT allowed the appeal. It held that the Claimants had all sufficiently complied with ACAS Early Conciliation and the issue had arisen from the variety of types of reference numbers supplied by ACAS and the limited availability to put these numbers into the ET1.

The appeal was upheld and all the dismissed claims were reinstated. However, the EAT also recommended in future any additional reference numbers be put in the additional information section of the ET1 to avoid the matter arising again.

The Takeaway Point

When ACAS Early Conciliation was initially introduced tribunals took a very strict approach to any ACAS issues that arose during litigation. However, since then tribunals have adopted a more lenient approach that ensures Claimants have access to justice provided they have complied with ACAS and obtained a certificate. Employers are unlikely to get much traction with the tribunal trying to strike claims out on such technical issues.

Despite this change in judicial approach it is not surprising the Respondent sought to raise it as in such a large class action claim they will be looking to thin the herd of Claimants through both the application itself and the attrition of having the matter prolonged by preliminary hearings and appeals. This is the fifth preliminary matter to arise in this claim and, with appeals, the matter is now ongoing for over seven years with an appeal likely to follow any judgment.