Labour & European Law Review Weekly Issue 463 30 March 2016
The law requires prospective tribunal claimants to go through a process of early conciliation in order to receive an Acas early conciliation certificate before lodging a claim. In Drake International Systems Ltd and ors v Blue Arrow Ltd, the Employment Appeal Tribunal (EAT) held that a tribunal can substitute subsidiary companies as a respondent in place of a parent company to an existing claim as part of its case management powers.
In January 2015, Blue Arrow took over the service of managing workers at Peel Ports Ltd in Liverpool from Drake International Ltd. Blue Arrow then brought proceedings against Drake under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) for a failure to provide employee liability information.
Blue Arrow completed early conciliation in respect of the matter with Drake and then lodged proceedings against Drake. As it was not clear whether Drake was in fact the transferor Blue Arrow also reserved the right to add further respondents to its claim form.
In its response to the tribunal claim Drake argued that the employees were employed by four wholly owned subsidiaries and that the claim against it should be dismissed. It also argued that Blue Arrow was now out of time to bring the claim against any of the transferors.
The tribunal judge allowed the application by Blue Arrow to substitute the four subsidiaries for the parent company on the application form. Drake appealed on the ground that Blue Arrow must enter into early conciliation in respect of each of the four new respondents to the claim.
Section 18A(1) of the Employment Tribunals Act 1996 states that before a prospective claimant can present an application to start a claim, they must provide “prescribed information in the prescribed manner, about that matter” to Acas. Rule 4 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 provides that if there is more than one respondent the prospective claimant must present separate early conciliation forms in respect of each one.
The EAT dismissed Drake’s appeal, holding that the “matter” referred to in section 18(A) could include different respondents. The claim that had been lodged against Drake was one that the tribunal had jurisdiction to consider within the meaning of its own rules. All that was at issue was a decision to allow one party to be substituted by others which was essentially a case management decision for the tribunal. If the claim against the current respondents had been unrelated to the proceedings against the parent company, the tribunal might have refused the amendment on the ground that it did not satisfy the requirements of “relevance, reason, justice and fairness inherent in all judicial discretions”, but those circumstances did not apply in this case.
In any event, the Act makes clear that a reference to Acas for early conciliation is only required in relation to a “prospective claimant” and a prospective respondent. Once a claim had been brought and conciliation completed, it did not make any sense to refer to a “prospective claimant” anymore. There was therefore no need to make another reference to early conciliation.
This case is another in a line of recent decisions including Science Warehouse Ltd v Mills (weekly LELR 454) and Mist v Derby Community Health Services (weekly LELR 461) by the EAT which have taken the same approach to early conciliation where another claim and/or respondent is to be added where proceedings have been lodged.