Acas early conciliation

Employees are usually required to go through Acas early conciliation (EC) before they can lodge employment tribunal claims. Early conciliation makes the parties consider settlement before any costly legal wrangle begins. When early conciliation finishes, Acas will produce an EC Certificate, which contains a unique EC number to be included on any claim form. There is an exception to this rule if another person (B) has started Acas EC in relation to the same dispute and A lodges proceedings on the same form as B. An employment tribunal must reject a claim if it does not contain an EC number or explain why there is an exemption. Problems can arise in mass litigation where a claim form refers to multiple claimants who are not all named in the EC certificate.

This issue arose in Clark v Sainsburys, a collective claim for equal pay. At the time the claims were lodged, Acas dealt with EC certificates in a variety of ways, including ‘M’ numbers (for a multiple claim) and ‘R’ numbers (for individual claimants) in a variety of forms and permutations. An EC certificate might contain an M number (for the multiple claim) along with only one R number – for the lead claimant - but no individual R numbers for the other employees listed in the schedule attached to the certificate. In Clark v Sainsburys, the tribunal accepted claims if the claim form referred to an EC certificate where the claimant was named. However, they rejected claims for anyone who was not named in the EC certificate referred to on the claim form, even if they were listed on another EC certificate and had therefore complied with the requirement to go through early conciliation. The rejected claimants appealed to the EAT.

The EAT agreed with the employees. Although the rules say that a claim form must list each claimant’s name and address, the rules only require one EC certificate number. The EAT said the Sainsburys employees had all gone through early conciliation so were entitled to rely on the exemption even though they had not sought to do so. The EAT said that a literal interpretation of the rules – as only requiring one EC number – was reasonable. If one claimant started early conciliation and lodged a claim using that certificate, the other employees able to lodge a similar claim on the same form would not need EC numbers because of the exemption. Any claimant who had slipped through the net and not undergone early conciliation could be filtered out and dealt with later. The EAT did say that it would be helpful to set out all the relevant EC numbers on a multiple claim form to avoid argument.

This case takes a potentially useful tool out of the employer’s armoury in collective claims. It was a previously easy ‘win’ to knock out cases where the claim form and Acas EC certificates did not match up. However, this process also resulted in time consuming wrangling over whether claims were to remain in or out, and costly tribunal time litigating jurisdiction issues. That time could now be better spent on the substantive merits of collective claims, or on trying to settle them.