Background:

The claimants brought equal pay claims.  The claimants did apply to ACAS for an early conciliation certificate but on some of the claim forms it was omitted.  The rules of procedure required that the Tribunal staff should refer those claims to the Employment Judge but there was no automatic rule rendering the proceedings void.  Instead, the Tribunal could waive or vary the requirement.

At first instance, the Tribunal permitted all claims where there was an early conciliation (EC) number but rejected those where there was no number.  This was appealed to the EAT who stated it was not a mandatory requirement and allowed the appeal.  The respondent appealed to the Court of Appeal.

Outcome:

The Court of Appeal stated that it was sufficient for the number of an early conciliation certificate which pertained to one of the prospective claimants; there was no requirement for it to be directly linked to that claimant.  The Court of Appeal also outlined that there was a wide power given to the Tribunal to waive the requirement or vary it.  Where the Tribunal Judge did not reject the claim on that basis (and neither did the Tribunal staff) then it was not open for the respondent to argue at a later stage that it should have been rejected. Accordingly, the appeal was dismissed.

Practical Guidance for Employers:

The procedural rules are still seeking to align with the requirement for early conciliation in bringing an employment claim.  This case does outline the wide power and discretion given to the Tribunal in waiving the requirement for such procedural matters of having the claim form on the number and that the claim can be allowed to continue.  Furthermore, the court here makes it clear that the respondent cannot argue at a later stage to have the claim rejected for such procedural issues where the Tribunal Judge has allowed for it to progress.

A copy of the full case is available here: https://www.judiciary.uk/judgments/sainsburys-v-clark-and-others/