Early conciliation certificate not required for claim added by amendment

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ‘cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

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