Failure to engage in early conciliation means the Tribunal has no jurisdiction to hear the claim.

The claimant started a claim without first contacting ACAS or obtaining an early conciliation certificate. The error was not spotted and the Tribunal did not reject the claim.  It was only at a later case management hearing that the respondent argued that it should be rejected for the failure. The Tribunal then rejected the claim citing a ‘substantive defect’ and then permitted an amendment to re-commence the identical claim. The respondent appealed against that decision stating that the decision should have been a strike out for want of jurisdiction.

The EAT set aside the Tribunal’s notice of rejection and set-aside the grant of permission to amend. The Judge did allow the appellants to apply for the claim to be dismissed or struck out.  The Judge, however, refused those applications and found that the Tribunal had no jurisdiction to consider the claim. The appellants appealed to the Court of Appeal.

The issue was on the matter of jurisdiction when the early conciliation process had not been followed. Section 18A of the Employment Tribunal Act 1996 prohibited the claimant from presenting a claim where the early conciliation had not taken place. To this end, the natural consequence was that the Tribunal was precluded from entertaining it. The provisions had been introduced by Parliament because of the importance they attached to ensuring an opportunity for conciliation. The fact that the Tribunal did not notice it was not sufficient for allowing an unnatural construction of Section 18A. As a result, the claim should have been dismissed/struck out because of the claimant’s failure to comply with the requirements of Section 18A.  The Tribunal had no jurisdiction to hear it. The Court of Appeal went on to say that dismissal would be a more appropriate fit rather than strike-out.

The claimant cross-appealed citing that an amendment to existing proceedings could be allowed within the ambit of Section 18A. This was rejected by the Court of Appeal. The conclusion that the Tribunal had no jurisdiction to entertain a claim which did not go through early conciliation also applied to situations in which the claim was being amended.

The Court of Appeal has provided guidance on the importance and necessity of early conciliation for a claim to continue. The same wording is in Section 20A of the Industrial Tribunals (Northern Ireland) Order 1996 in Northern Ireland. The importance is that early conciliation must be done before claim can be considered by the Tribunal. This is based upon Parliament ensuring that that opportunity is given.

You can read the case in full here.