Hello and welcome back to Case of the Week. Last time we looked at TUPE and found out if a service provision change can take place if the activity carried out is no longer on behalf of a client. This week we will be looking at Early Conciliation.

Introduced in April 2014 under Part II, section 7 of the Enterprise and Regulatory Reform Act 2013, Early Conciliation is a process where ACAS tries to resolve any potential claim before it is submitted. Any Tribunal claims submitted after 6 May 2014 must have gone through the Early Conciliation process and have had an Early Conciliation Certificate issued.

There are some exemptions to this rule, including another joint Claimant having an EC Certificate already or the claim being against the Security Services. Previously the Tribunal had taken a zero tolerance stance towards prospective Claimants who did not comply with the EC process, including claims being dismissed for spelling errors, however recent judgments suggest this attitude has relaxed slightly.

Today’s question is:

Can an Early Conciliation Certificate cover a claim whose Claimant resigned after the Certificate was issued?

The Claimant, Ms Morgan, was employed by a different employer before transferring under TUPE to Compass Group, the Respondent. The Claimant believed that the Respondent was made aware of her acute anxiety disorder at the time of the transfer, a disability for the purposes of the Equality Act 2010.

The Claimant was then transferred to a different location to work in a less senior capacity. She felt aggrieved by this and sought legal advice. The Claimant raised a grievance and also began the Early Conciliation process. An EC Certificate was issued but two months later, after no action was taken to solve her grievance, the Claimant resigned and lodged numerous claims, including ones for disability discrimination and constructive unfair dismissal.

The Respondent argued that the Claimant’s claim was not under the ET’s jurisdiction because she had not followed the Early Conciliation process as the resignation came after the certificate was issued. The ET found in the Claimant’s favour and held that there was a connection between the matters in dispute at the time of Early Conciliation and the matters in the claim.

The Respondent appealed stating that the EC Certificate could only cover facts that were in existence when the EC process began. The EAT held that the Tribunal did have jurisdiction to hear the claim because the facts disputed in the claim were related to the facts in dispute at Early Conciliation.

The takeaway point:

Yes, an EC certificate can cover a claim from facts subsequent to an EC Certificate being issued if the facts are related. Here the EC process was started after the Employer did not handle a grievance properly and the resignation was because of a continued failure to address the employee’s grievance.

Likewise, if an employee had an unlawful deduction made from their wages and gone through the EC process there would be no need to restart the process if the employee made a claim following a further unlawful deduction.

Following some early zero tolerance judgments it appears that the ET is now more flexible when handling claims relating to Early Conciliation and claims will not be as readily dismissed for issues surrounding EC.