11 Dec 2015

No early conciliation required to add further claims

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The Employment Appeal Tribunal ("EAT") has held that a claimant did not have to go through a further ACAS Early Conciliation ("EC") process in order to amend her ET1 to add a further claim.

In the case of Science Warehouse Ltd v Mills, the Claimant resigned and brought a claim of discrimination. She then made an application to the Tribunal to amend her claim to include an additional claim of victimisation.

The Respondent objected to her application solely on the basis that she had not gone through the EC process in respect of her new claim.

The EAT held that the Tribunal Rules do not require an EC process to be undertaken in respect of each individual claim – only in relation to the broader "matter". As the claimant had previously lodged a valid Employment Tribunal claim, the addition of the further claim was a matter for the Tribunal's general case management powers and did not require a further EC process.

The EAT also made the point that a claimant does not, as part of the EC process, have to particularise their claim or claims in order to get their EC number (they simply have to provide details of the parties' names and addresses).

This is the first appellate decision on this point and it is helpful for both employees and employers that the EAT has taken a pragmatic approach. However, permission to amend a claim is always at the discretion of the Tribunal and therefore there may be cases in which amendment of this kind is not granted (particularly where the facts and matters of the new claim are not related to the original claim) and in those circumstances the EC process will need to be repeated in respect of the new claim.

However, as neither the claimant nor the respondent is obliged to enter into meaningful settlement discussions as part of the EC process it is not an unduly onerous process and can be completed relatively quickly.  From the outset, if the Claimant states they are not interested in settling as part of the EC process the first the Respondent may know about the claim is receipt of the ET1.

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