Reynolds v Abel Estate Agent Ltd and Others

Background 

Ms Reynolds worked for an estate agent and property management business.  Six days after her dismissal on 12 April 2023 she lodged claims in the employment tribunal that she had been subject to a detriment for whistleblowing and that her dismissal was automatically unfair.  She also made an application for interim relief. 

Ms Reynolds lodged her claims without contacting ACAS to start Early Conciliation (EC).  Although EC applies to most employment tribunal claims it does not apply to claims for interim relief.  This is because the time limit for lodging an application is just 7 days from the date of dismissal and is a temporary order from the tribunal to preserve the contract of employment pending the full unfair dismissal hearing.  

Although the requirement to start EC applied to her claim that she had been subject to a detriment this was missed by tribunal and her claims were allowed to proceed.  The employer dd not submit a response to her claims nor did they attend the hearing.  The tribunal issued a default judgement against the employer.  The employer made a number of applications including an extension of time to present their response and that the detriment claim be rejected because of the failure by Ms Reynolds to start EC. 

The tribunal rejected the detriment claim under what was then rule 12 (now rule 13) of the Employment Tribunal Procedure Rules 2024. This sets out the grounds on which a claim may be rejected, including failure to provide an EC number on the claim form. However, it allowed Ms Reynolds to amend her claim to add in the detriment complaint. The respondents appealed to the EAT.  

Key Issues  

Section 18A of the Employment Tribunals Act 1996 (ETA 1996) provides that before a prospective claimant presents a claim at an employment tribunal relating to any matter to which the EC requirement applies (which is most claims): 

• the prospective claimant must provide prescribed information to ACAS in the prescribed manner, about that matter (i.e. start EC); and  

• a person who is subject to the requirement in section 18A (1) may not present an application to institute relevant proceedings without an EC certificate (section 18A (8)). 

The EAT held that the requirement to commence EC under S.18A ETA is not an absolute bar to an employment tribunal considering a claim. In its view non-compliance should not affect the competence of the tribunal to hear a claim which, in all other respects, has been properly presented. 

In Sainsbury's Supermarkets Ltd v Clark and others [2023], the Court of Appeal held in a case where a claim was accepted but which was defective because there were no EC numbers for some of the claimants, the employer was prevented from raising a failure to comply with EC at a later stage that the claims should have been rejected. The employer appealed to the Court of Appeal. 

The Outcome  

The Court of Appeal dismissed the appeal, It held that if a prospective claimant fails to comply with the EC requirements in respect of a relevant claim, the tribunal has no jurisdiction to hear it.  Accordingly, the detriment claim should have been rejected.  However, it considered that S.18A does not apply to amendments to an existing claim.  An application to amend is subject to the discretion of the tribunal exercising its case management powers. 

Why this matters 

While claims for interim relief are rare it is important to remember that the exemption from EC only applies to the claim for unfair dismissal.  EC must still be started in respect of any other claims such as in this case, for a whistleblowing detriment claim.  While a tribunal can exercise its discretion to allow an amendment to the claim it is not obliged to do so in every case.