Early conciliation certificates can apply to events that take place after the certificate is issued says EAT

In Compass Group v Morgan, the EAT considered whether an ACAS Early Conciliation Certificate only applied to matters that had already taken place at the point the certificate was issued.

27 September 2016

Claimants lodging most types of claim in the employment tribunal are only able to do so if they have informed ACAS of certain information about the "matter" and received an early conciliation certificate. In the recent case of Compass Group v Morgan, the EAT considered whether an early conciliation certificate obtained by a "prospective claimant" could cover future events.

The claimant obtained an early conciliation certificate in January 2015, while still employed. She resigned from her employment two months later, claiming constructive dismissal and a failure to make reasonable adjustments. The facts complained of were those that had led to her grievance several months earlier, but at the point she went through the early conciliation process, she had not yet left employment. The employer therefore argued that the tribunal could not hear the claim as the alleged dismissal had not occurred at the point the early conciliation certificate was issued.

Both the tribunal and the EAT disagreed with the employer. The early conciliation requirements are not very extensive, and the information about a "matter" that a claimant has to give ACAS before lodging a claim with the tribunal is very limited, extending only to the names and addresses of the claimant and respondent. Apart from the initial obligation to contact ACAS, neither party is obliged to participate in the conciliation process. 

Though there should be a link between the matters raised in early conciliation and those in the claim form, the EAT found that the obligation to provide ACAS with the prescribed information "relating to any matter" is broad and flexible language.  As the claimant here had relied on breaches of the duty of implied trust and confidence in her claim form, this had a sufficient connection with the matters in dispute at the time of the early conciliation process, and there was no need to go through a further early conciliation process before bringing her claim. 

The EAT was clear that jurisdictional challenges on the basis of the cover provided by an early conciliation certificate should be rare. The requirements of the legislation will be met as long as there are or were matters between the parties whose names and addresses were notified to ACAS, and these matters related to the proceedings. This provides helpful clarity in an area which has seen cases decided differently by different employment tribunals.

Impact on time limits
It remains to be seen, however, what effect this might have on time limits, which are normally extended by the time spent in the early conciliation process. Last year, in Chandler v Thanet District Council, the employment tribunal held that the early conciliation provisions should be interpreted so that the time spent in early conciliation should be "added on" to the normal time limit, even when the period of early conciliation began before the effective date of termination. However, the decision in Chandler is not binding on other employment tribunals and so until the EAT hears a case dealing with this issue, the position will remain unclear.