When lodging a complaint, claimants have to ensure that they comply with their obligations under the ACAS Early Conciliation (EC) procedure, which includes providing their EC certificate number. In Clark and ors v Sainsburys Supermarkets Ltd and Lloyds Pharmacy Ltd, the Employment Appeal Tribunal (EAT) held that where there are multiple claimants, only one EC number is needed on a multiple claim form.
The claimants, who worked in a number of different jobs, started equal pay claims in 2015 with comparators in a range of different roles, using multiple claim forms. All of them complied with their obligations under EC.
At the time that they lodged their claims, ACAS adopted a different approach with different claimants in terms of certificate numbers. In some instances, they provided a certificate with a single multiple EC number (an “M” number); in another they issued a certificate with an M number and an individual EC number (an “R” number); while in others they issued an EC certificate with one M number and an R number for each of the prospective claimants that appeared on the schedule to the EC certificate.
Although the solicitors representing the claimants also adopted different approaches on different claim forms when setting out the EC certificate number, each claim form had one EC number in the appropriate box. The claims were subsequently accepted as having complied with the rules when they were received at the tribunal office.
However, in 2020 at a fifth preliminary hearing, the employers argued that the forms did not comply with Rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 which requires an EC number to be provided for “each” claimant.
Rule 10(1)(b) states that a tribunal must reject a claim if it does not contain “each” claimant’s name and address and “each” respondent’s name and address.
Rule 10(1)(c) states that a claim will be rejected if it does not contain “an” EC number.
The tribunal judge allowed all the claims which contained an EC number, or numbers, on the claim form that appeared somewhere on an EC certificate on which the claimant’s name was also included. So, for example, if only an M number was given on the claim form, provided the claimant's name appeared in the schedule to the EC certificate that had the M number on it somewhere, he allowed their claim to proceed. However, he rejected the claims of anyone whose name appeared on an EC certificate but where no number appearing on that certificate was included anywhere on the claim form.
The claimants appealed on the basis that only one EC certificate number is needed on a multiple claim form for any claimant who brings a claim on that form, as Rule 10 makes clear.
Noting that these were gatekeeping provisions, the EAT emphasised that the fundamental purpose of the underlying scheme was to ensure that claimants complied with the EC process, assuming they were required to do so.
That being so, the EAT held that the employment tribunal was wrong to reject the claims of prospective claimants in this case whose names did not appear on an EC certificate as they had all complied with Early Conciliation. All that was required was for the claim form to contain “an” EC number of an EC certificate on which the name of one of the prospective claimants making the joint claim appeared.
However, although there was no mandatory requirement, the EAT considered that it would be “good practice to set out all the EC numbers for all claimants on a multiple claim form” in order to minimise the risk of issues about EC arising.
The EAT reinstated the claims that the tribunal had thrown out.