Labour & European Law Review Weekly Issue 492 20 October 2016
The law requires prospective tribunal claimants to go through a process of early conciliation (EC) with Acas before they can lodge a claim. In Compass Group UK & Ireland Ltd v Morgan, the Employment Appeal Tribunal (EAT) held that the EC certificate issued by Acas can cover matters that occur after that date, as long as there is a connection between the matters in dispute at the time of the EC process.
Ms Morgan, who suffered from an anxiety disorder which her employer knew about, was instructed in September 2014 to work at an alternative location and at a less senior level. After submitting a grievance on 13 October, she instructed solicitors in November. She then entered the EC process and was issued with an EC certificate in January 2015. On 18 March, she lodged a tribunal claim which included claims for a failure to make reasonable adjustments and constructive unfair dismissal.
The Compass Group said that the tribunal did not have jurisdiction to hear her claim for constructive unfair dismissal as she had not resigned at the time early conciliation had begun or concluded.
Before starting a tribunal claim “relating to any matter”, section 18A (1) of the Employment Tribunals Act 1996 requires prospective claimants to present to Acas “prescribed information, in the prescribed manner, about that matter”.
At a preliminary hearing the company argued that prospective claimants should not be able to bring a claim relating to a cause of action which post-dated notification to Acas.
The employment judge rejected the company’s arguments. Ms Morgan’s claim form raised breaches of the implied term of mutual trust and confidence that formed part of the matters notified to Acas as part of EC. Although the failure to deal properly with her grievance and her constructive dismissal post-dated the EC process, the judge was satisfied that there was a connection between these and the issues which had let to early conciliation.
Compass Group appealed to the EAT arguing that the EC process and certificate could not apply to causes of action that had not accrued at the date of notification to Acas.
The EAT dismissed the appeal. Noting that Parliament had used the more general word “matter” in the legislation rather than “cause of action” or “claim”, the EAT considered this was broad enough to encompass not just the precise facts of a claim that bring it within a cause of action but also other events at different times and/or dates and/or involving different people. The EAT took into account that the only information prospective claimants have to provide when notifying Acas is the names and addresses of the prospective parties as opposed to details of any actual or prospective dispute.
Furthermore the EAT considered it was relevant that early conciliation was voluntary and any contact with the respondent was conditional on the claimant giving their consent. There was nothing in the legislation which required that early conciliation only applies to events that pre-date the commencement of early conciliation or the issue of the certificate.
However, that did not mean that an EC certificate gave prospective claimants a free pass to bring proceedings about unrelated matters – that was a question of fact and degree for tribunals to decide in the event of a challenge. In this particular case, the tribunal judge was right to come to the conclusion that there was a connection between the factual matters complained about in the claim form and the matters that were in dispute at the time of the EC process.
This case provides welcome clarification that early conciliation can cover claims which arise after the EC certificate has been issued provided that the there is a connection between the matters which led to early conciliation being commenced and the subsequent claim.