S.18A of the Employment Tribunals Act 1996



ACAS Early Conciliation Certificate valid despite naming 2 Respondents

In De Mota v ADR Network and anor, the EAT has held that an employment judge erred in rejecting a claim on the basis that the early conciliation (EC) certificate named two respondents. Although rule 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (the EC Rules) requires a prospective claimant to present a separate EC form in respect of each respondent when contacting Acas, it does not apply to the EC certificate itself, and there is no rule that renders unlawful a certificate that names two respondents.

DM worked as an HGV driver for the Co-Operative Group Ltd (CG Ltd) between 2012 and 2015. He sought to claim unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and notice pay. His case was that he was employed by, or contracted to work for, ADR, and that ADR assigned him to work for CG Ltd. ADR and CG Ltd disputed this, saying that DM had set up his own company providing his services to ADR, and that ADR provided his services to CG Ltd. DM completed an EC form online. The information provided to online applicants states, in accordance with rule 4 of the EC Rules, that in order to make a claim against more than one respondent the claimant must complete a separate form for each one. However, DM completed just one form, putting ‘ADR Network and The Co-operative Group’ in the box for the respondent’s name. He gave an address which is both the depot of CG Ltd and a business address of ADR. Despite the error, Acas issued an EC certificate, which identified the ‘prospective respondent’ as ‘ADR Network and The Co-operative Group’. DM went on to present his claim to an employment tribunal, naming ADR and CG Ltd as two separate respondents.

An employment judge rejected DM’s claim for non-compliance with the EC Rules. He ruled that the form that DM had submitted to Acas named neither of the respondents but rather a non-existent entity whose name was the conjunction of the names of both respondents. He noted that rule 4 renders it necessary to submit separate forms in respect of separate respondents. He therefore concluded that DM had failed to provide the required information in the prescribed manner and so the tribunal was deprived of jurisdiction by S.18A of the Employment Tribunals Act 1996. DM appealed to the EAT.

The EAT allowed the appeal. His Honour Judge David Richardson, sitting along, noted that, following the EAT’s approach in cases such as Mist v Derby Community Services NHS Trust (Brief 1040) and Drake International Systems Ltd and ors v Blue Arrow Ltd (Brief 1040), it is clear that the purpose of the EC provisions is limited – it is not to require or enforce conciliation, it is simply to build in a structured opportunity for conciliation to be considered. Furthermore, it is no part of the provisions to encourage satellite litigation. HHJ David Richardson pointed out that S.18A ETA, which sets out how the tribunal’s jurisdiction depends on compliance with the EC provisions, focuses upon the existence of an EC certificate. In his view, Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the employment tribunal. For one thing, as was pointed out in Mist, if the prospective claimant does not provide the prescribed information in the prescribed manner, the EC Rules make it plain that Acas is not bound to reject the claim. For another, if it were open to the parties or the tribunal to go behind the certificate, it would also be open to them to challenge Acas’s conduct of the conciliation procedure. Thus, the employment judge erred in law in going behind the certificate and finding that DM failed to provide the prescribed information in the prescribed form to Acas.

HHJ David Richardson went on to hold that the employment judge was wrong to rule, in effect, that Acas had issued an unlawful certificate. Rule 4, which requires individual respondents to be named on separate forms, does not apply to the EC certificate, and there is no similar mandatory requirement elsewhere in the EC Rules. Nor should such a requirement be implied, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It may be that the issuing of a single certificate was an error on Acas’s part but that is not the same as saying that it was an unlawful certificate. The appeal would therefore be allowed and the claim remitted to the employment tribunal for proceedings to continue.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0305_16_1309.html