Tribunal rules stipulate that claimants must submit an Acas early conciliation certificate number along with their claim form. In Cottrell v Avon Cosmetics Ltd, the EAT held that, when more than one prospective respondent has been named, claimants must obtain a separate early conciliation number for each of them.
Ms Cottrell was employed by an agency, Echo Personnel Limited, between 8 and 16 January 2018, when she was dismissed. She claimed this was because she had made protected disclosures (blown the whistle) about the time allocated to clean offices and whether it was enough to allow her to clean to an acceptable standard. For their part, Avon argued that she was dismissed because she was confrontational, argumentative and, at times, had refused to carry out the duties assigned to her.
On 26 March 2018, Ms Cottrell lodged claims against both Echo and Avon alleging breach of contract, unfair dismissal and/or that she had been subjected to detriments for making public interest disclosures. She obtained an Acas early conciliation certificate number in relation to her claim against Echo, but not Avon. On the claim form against Avon, she used the EC certificate number for Echo. On 11 April 2018, the tribunal wrote to her to say that her claim against “Echo Personnel Ltd & Others” had been accepted. She understood that to mean that the claim against both Echo and Avon had been accepted.
In response, Avon argued that the tribunal did not have jurisdiction to deal with the claim against them, as Ms Cottrell had failed to comply with the requirement to obtain an Acas early conciliation number under section 18A Employment Tribunals Act 1996 (ETA). The tribunal then wrote to both parties on 16 June 2018 to advise them that there would be a public hearing to consider the jurisdictional issues raised by Avon.
Section 18A(1) ETA requires prospective claimants to provide “prescribed information, in the prescribed manner” to Acas.
Section 18A(12) ETA gives power to the Secretary of State to set out requirements with regard to the form that must be used for the purpose of providing information. This is contained in Rule 4 of the Early Conciliation Rules of Procedure which states that “if there is more than one prospective respondent, the prospective claimant must present a separate early conciliation form … in respect of each respondent”.
Although Ms Cottrell complained at the preliminary hearing in January 2019 that she had not received the letter from the tribunal dated 16 June 2018, the employment judge continued with the hearing as she had been put on notice of the issues being raised in the response, which she had received. He concluded that the claim should be dismissed as Ms Cottrell had not complied with the requirement to provide separate Acas conciliation numbers for each of the respondents and that the tribunal’s acceptance of the claim was an administrative step.
Rather than appealing against that decision, she asked for a reconsideration of the judgment on the basis that the letter of 16 June 2018 was a forgery; that the claim against Avon had been accepted by the employment tribunal’s letter of 11 April 2018 so it was a 'respondent' not a 'prospective respondent'; and that the employment judge had acted improperly in rejecting the claim against Avon.
The reconsideration application was rejected and Ms Cottrell appealed the reconsideration decision rather than the original dismissal. She was allowed to appeal but only on the basis that the employment judge should have considered joining Avon as a party to her claim. This had been held to be permissible in Drake International v Blue Arrow (weekly LELR 463) and Mist v Derby Community Health Services NHS Trust (weekly LELR 461).
Rejecting the appeal, the EAT held firstly that it did not raise any new matters that would allow the tribunal decision to be overturned. Secondly, as Ms Cottrell was adamant that Avon should not be added as a party to the claim but rather as a valid respondent to the proceedings, her appeal could not succeed.
This decision is confirmation that an Acas certificate must be obtained for each respondent prior to tribunal proceedings being instituted.