Three recent cases concerning early conciliation

Myers v Nottingham City Council ET/2601136/15
Mist v Derby Community NHS Trust UKEAT/0170/15
Drake International Systems Ltd and others v Blue Arrow Ltd UKEAT/0282/15

Why care

Before an employment tribunal claim can be brought, “the prospective Claimant must provide to Acas prescribed information in the prescribed manner, about that matter” (s18A of the Employment Tribunals Act 1996) – unless the requirement is complied with by another person instituting relevant proceedings relating to the same matter.

Once the form has been sent to Acas, a copy is sent to a conciliation officer who must endeavour to promote a settlement during the prescribed period of one month, and may continue to do so for a further two weeks if it appears likely that settlement may then be reached. Once the period has expired, or the conciliation officer concludes a settlement is not possible, he or she must issue a certificate to the prospective Claimant. An employment tribunal claim may only be issued (unless the case is one of the prescribed cases under sub-section 7) if the Claimant has a certificate.

Cases have since been brought to flesh out the gaps in the stated procedure – what is the correct time limit for bringing claims, and when is it necessary to go through early conciliation once more?

The cases

Myers v Nottingham City Council 2601136/15

The two Claimants were given notice of redundancy on 11 March 2015, to expire on 8 June. On 3 June they both sent the necessary information to Acas to begin early conciliation, and they received their early conciliation certificates on 3 July. The claims were presented to the tribunal on 6 October 2015. The Respondent argued that the claims were presented out of time because the period spent in early conciliation prior to the date of dismissal should not be included when calculating the extension, and that if that five day period was disregarded, then the last day for presentation of the claims was 2 October.

The Employment Judge held that the claims were presented in time. The purpose of the early conciliation procedures was to settle more disputes before they reached the employment tribunals.

Applying the same reasoning as Chandler v Thanet Borough Council (2014), another tribunal decision, the Employment Judge considered government guidance (see here) which states that “Submission of the Early Conciliation form to Acas will “stop the clock” on the time period for you to submit your claim. This means the time limit for all claims to which Early Conciliation applies will be three months plus the time during which Acas conciliate”. On that basis, the Employment Judge held that the entire period of early conciliation should be taken into account and the claims were in time.

**Mist v Derby Community Health Services NHS Trust **

Mrs Mist was employed by Derby Hospitals NHS Foundation Trust (the hospital trust). In January 2014, the hospital trust decided to transfer the contract for the services on which Mrs Mist spent most of her time to Derby Community Health Services NHS Trust (the community health trust). Mrs Mist asked for information about her future employment and confirmation that she would transfer under TUPE without success.

She resigned without notice on 10 April and contacted Acas to start early conciliation against “the Royal Derby Hospital”. An early conciliation certificate in that name was issued on 3 June and on 4 July she brought several tribunal claims against the hospital trust, correctly named, but the body of her complaints made clear she considered that there had been a relevant service provision change to the community health trust. The employment tribunal accepted the claim despite the name on the early conciliation claim being different to that on the ET1. Mrs Mist applied to add the community health trust (or, as she incorrectly called it, “Newholme hospital”) as a second respondent in September 2014.

The employment tribunal allowed her to add the community health trust as second respondent, but then the claim against it was struck out, the judge holding that it would have been reasonably practicable for Mrs Mist to include it at the time of the original claim and she was now out of time.

The EAT (HHJ Eady) stated that paramount consideration should have been the relative injustice to each party in granting or refusing the amendment. The tribunal had focused on the absence of an explanation from Mrs Mist and had not balanced the relative disadvantages to the parties correctly. The prejudice to the community health trust was in fact limited to an inability to take the time limit point; whereas Mrs Mist would be denied the right to bring a claim against the transferee in a TUPE transfer case.

The EAT held that the employment tribunal had a discretion to accept the claim despite differences between the name of the prospective respondent on the EC certificate, and those set out on the ET1 under rule 12(2A) of the Employment Tribunal Rules of Procedure. A trading name could be sufficient when providing a prospective respondent’s name and address to Acas.

There was no requirement for Mrs Mist to make a second application for early conciliation, as the application to join the community health trust as second respondent was an amendment to her existing claim and did not require a further EC notification. The EAT considered that this approach was also consistent with the Employment Tribunal Rules of Procedure.

Drake International Systems Ltd and others v Blue Arrow Ltd

Blue Arrow (an employment business) took over the service of managing workers at Peel Ports Ltd from Drake International Ltd (the Respondent) (or one of its subsidiaries): the ET1 said “This claim is brought against Drake International Ltd or the company that was the transferor of the employees under the service. The Claimant has been unable to determine with certainty the company that employed the transferring employees. In the circumstances, the Claimant reserves the right to add further Respondents to this claim.”

The ET3 stated that Drake International Systems Ltd (DISL) was party to a series of contracts with its client Mersey Docks and Harbour Company (a subsidiary of Peel Ports Ltd) to supply contract dock labour. Each member of the workforce assigned to the contract was employed by one of Drake International Ltd’s subsidiaries – DISL, Industrial Overload Ltd, Office Overload Ltd and Drake Personnel Ltd (together the Transferors) – but the Respondent itself was not party to the contract, did not employ any employees; the claim against it should be dismissed and the Claimant was out of time to bring a claim against any of the Transferors.

The Employment Judge allowed the Claimant’s application to substitute the Transferors for the parent company Drake International Ltd.

The EAT dismissed the Respondent’s appeal, quoting the purpose of the early conciliation provisions to be as described by HHJ Eady in Science Warehouse v Mills (2015) as being “to provide an opportunity for parties to take advantage of Acas conciliation if they wish, led by the wishes or the prospective Claimant in respect of what is broadly termed “ a matter”. The EAT commented that the facts of this case are typical of many where the precise identity of the employer in a group of companies may not be clear to its employees, “and for whom it may be a matter which until making a claim has assumed little significance in their life”. In this case, there is a close link between the parent and the subsidiaries, and the same legal team represented all of them. The Claimant had an opportunity to seek conciliation in respect of the matter which was the subject of the eventual claim, and the claim was properly instituted as one which the Tribunal had jurisdiction to consider. The question is whether the case management decision to allow the substitution of one party by another was a correct use of the Tribunal’s discretion.

The tribunal must exercise its discretion satisfying the requirements of “relevance, reason, justice and fairness” (Selkent Bus Co Ltv v Moor (1996)) and also the overriding objective in rule 2 of the Employment Tribunal Rules of Procedure, which the avoidance of unnecessary formality and seeking flexibility in the proceedings, avoiding delay so far as is compatible with proper consideration of the issues, and saving expense (which would include saving Acas’ expense and time as well as that of the parties). To make the parties go through early conciliation once again had “the ring about it of an empty formality which does no service to justice”.

The EAT said that the early conciliation rules speak of a “prospective Claimant” in relation to proceedings which may then be issued. It makes no sense to use these terms once proceedings have been issued.

What to take away

Although Myers is not binding on other tribunals, the other two cases set precedent for future cases. What is clear from all three cases – and Science Warehouse v Mills, decided by the EAT earlier in 2015 – is that cases are being decided consistently and practically to resolve points which were previously uncertain in the operation of early conciliation.

The EAT has said that what happens during the early conciliation procedure may be relevant to, but is not determinative of, any case management decisions to be made by the tribunal once a claim has been accepted. Such decisions must be taken in accordance with existing case law and the overriding objective in the Tribunal Rules.

• A Claimant was not required to go through early conciliation once more before applying to amend her claim to include a further claim which arose after the end of the early conciliation period (Science Warehouse v Mills)
• A Claimant was not required to go through early conciliation once more before applying to amend an existing claim to include a new Respondent (Mist v Derby Community Health Services NHS Trust) A Claimant was not required to go through early conciliation once more before applying to amend an existing claim to replace the parent company with four subsidiary companies as the correct Respondents (Drake International Ltd and others v Blue Arrow)
• (Subject to EAT confirmation) A Claimant may add the entire early conciliation period to the normal time limit when determining the length of the extension in which he or she may bring a claim.

Some readers will remember the statutory disciplinary and grievance procedures introduced in 2004 and repealed in 2009. Like early conciliation, the purpose of these was to resolve a greater number of employment disputes without tribunal claims. However, they led to a number of cases on how those procedures should be operated and whether the parties had done as they should. The EAT in Drake International noted that Parliament appears to have used in the early conciliation procedure broad terms such as “matter”, and chosen not to specify which details of a “matter” must be specified, precisely to avoid the proliferation of similar cases and “formalities fettering a fast and fair process of justice”.

It is to be hoped that the working of the early conciliation procedures will be quickly ironed out so that all parties know where they stand, if early conciliation is to achieve its aim.