Early conciliation came into effect in Northern Ireland on 27 January 2020 and as a result any Claimant wishing to lodge a Tribunal claim must first notify the Labour Relations Agency of their intention to do so and obtain an early conciliation certificate before progressing a claim to the Industrial Tribunal.  Unfortunately, due to the ongoing pandemic we have seen limited cases where the Tribunal in Northern Ireland have been required to consider issues arising from early conciliation. In this month’s article we have therefore decided to look at some case law from Great Britain, where early conciliation has been in place since 2014, to get a sense of the type of issues which may arise from early conciliation in 2021 and an indication as to how a Tribunal in Northern Ireland may address them going forward.

Can a Claimant rely on a pre-dismissal early conciliation certificate when issuing an unfair dismissal claim?

Yes, according to the judgment in the case of Compass Group UK and Ireland Limited –v- Morgan [2016] IRLR924.  In this case the Claimant commenced early conciliation via ACAS following a transfer to a different work location and subsequent grievance raised with her employer.  An early conciliation certificate was issued however two months later, after no action was taken to resolve her grievance; the Claimant resigned and lodged numerous claims including a claim for constructive unfair dismissal. The Respondent contended that the Tribunal did not have jurisdiction to hear the Claimant’s unfair dismissal claim as her resignation came after the early conciliation certificate was issued.  In its decision the Employment Appeal Tribunal (EAT), upholding the Employment Tribunal’s decision, accepted that there was sufficient connection between the matters to which the EC certificate related and those which were the subject of the subsequent claim.  In the circumstances the Claimant’s claim was allowed to proceed.

How will the Tribunal approach a claim issued out of time as a result of an incorrect early conciliation number?

In the case of Adams –v- British Telecommunications PLC [2017] ICR382.  The Claimant completed an ET1 with an incorrect early conciliation number.  The Employment Tribunal rejected the claim, and the Claimant submitted a further claim form but by this time her claim was two days beyond the relevant limitation date.  Her claim was subsequently rejected by the Tribunal which concluded that it was reasonably practicable for the claim to have been lodged in time.  The Claimant successfully appealed the decision.  The EAT concluded that the focus ought to have been on whether there was any impediment to a timely presentation of the Claimant’s second claim.  The EAT noted that the critical factor was prejudice.  The Claimant would be deprived of any avenue for making her complaint of unlawful race discrimination due to a minor error in the early conciliation certificate number detailed within her claim form, which in the EAT’s view caused no prejudice to the Respondent.

Can a Claimant justify a failure to initiate early conciliation process where an exemption does not apply?

No, according to the Judgment in Cranwell –v- Cullen UK EATPAS/0046/14/SM. In this case the Claimant appealed the Tribunal’s decision to reject a claim because she had not obtained an early conciliation certificate from ACAS.  The Claimant had lodged her claim form and had ticked a box indicating that she was exempt from early conciliation - however none of the exemptions applied to her and the Tribunal rejected her claim on this basis.  As part of her Appeal, the Claimant alleged that she had been subjected to sexual harassment and assault and that she had obtained a Restraining Order against her former employer.  For these reasons she did not wish to conciliate with them and believed that doing so would involve her having direct contact with her employer.  Although the EAT was sympathetic to the Claimant’s position, it held that the requirement to comply with the early conciliation procedures was absolute which can only be departed from in specific cases prescribed by the Employment Tribunal rules.  There is nothing in the rules that allows for any discretion in such circumstances.

Is an extension of time capable of being granted in respect of more than one period of early conciliation?

Not according to the EAT Judgment in HM Revenue and Customs –v- Serra Garau UKEAT/0348/16. This case concerns Mr Garau who was given notice of termination of his employment on 1 October 2015 which expired on 30 December 2015.  A period of early conciliation took place during the Claimant’s notice period from 12 October to 4 November 2015.  The limitation date for Mr Garau’s claims expired on 29 March 2016.  On 28 March 2016, Mr Garau contacted ACAS again to commence a second period of early conciliation and a certificate was issued on 25 April 2016.  Mr Garau presented a claim to the Tribunal on 25 May 2016 relying on the second period of early conciliation, Mr Garau contended that his claims were in time and the Employment Tribunal agreed with him.  On appeal however the EAT overturned this decision.  It concluded that a second certificate does not trigger the modified limitation regime.  In the EAT’s view a second period of early conciliation was voluntary and not required under the mandatory early conciliation rules and therefore did not attract the benefit of an extended limitation period.

Can a claim form be amended to add a Respondent who has not been involved in early conciliation?

Yes according to the Judgment of Mist –v- Derby Community Health Services NHS Trust.  On Appeal the EAT held that it was not necessary for a claim to go through an early conciliation process again before applying to amend an existing claim to include a new Respondent.  An Application by the Claimant to add a Respondent was a case management issue to be addressed in accordance with Tribunal rules and procedure. The EAT reached a similar conclusion in the case of Drake International Systems Limited and ORS –v- Blue Arrow Limited UK EAT/0282/15/DM finding that once a claim had been brought in respect of a matter, and early conciliation had been completed, there was no further early conciliation requirement.  The Tribunal had discretion to add new Respondents to the proceedings where it was in the interest of justice to do so.

The above Judgments are not binding on a Tribunal in Northern Ireland however they may prove persuasive to Tribunals considering issues of a similar nature in the future.  Whilst it is clear that early conciliation has created a significant amount of its own litigation within Great Britain, it remains to be seen whether it has the same effect in Northern Ireland in the absence of an Employment Appeal Tribunal.

Related article

A Guide to Early Conciliation