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EAT gives clarification on when Early Conciliation is needed

BY Helen Donnelly
Employment Law & HR
BG Purple

We all know that employment tribunal claimants need to go through Acas early conciliation before raising a claim, but the scheme leaves questions unanswered about how EC interacts with tribunal rules about when a claim is raised and against whom it is raised.  

For example, does a claimant need to go through EC when amending a claim or when adding another respondent to proceedings? Well, we know have an answer to these particular questions, thanks to three recent employment tribunal judgments.

The first is Science Warehouse Ltd v Mills in which the claimant applied for an amendment to her claim to introduce a new claim which had not been discussed in the original EC process. This was opposed by the respondent on the grounds that the EC process had not been followed in relation to the new claim.  

Under the Employment Tribunal Rules, a tribunal has discretion to allow an amendment after taking into account the relevant circumstances. In this case, the Employment Appeals Tribunal decided that it was not necessary for the claimant to have gone through EC again. A claimant is not required to provide details of their complaint at the EC stage, so it was a matter for the tribunal’s discretion whether to allow a new head of claim to be added to an existing claim.

In the second and third cases, Mist v Derby Community Health Services NHS Trust and Drake International Systems Ltd and others v Blue Arrow Ltd, the EAT was asked to decide whether or not EC was required before a new respondent could be added to a claim. In both cases, the EAT found that EC was not required. It was within the existing powers of the tribunal to make case management decisions about adding parties to the claim without the need for EC.

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