Science Warehouse Ltd v Mills UKEAT/0224/15; (2016) EMPLR 002
Employment Appeal Tribunal (EAT)
Her Honour Judge Eady QC
Before presenting a complaint to an employment tribunal, claimants must contact ACAS, who will attempt ‘early conciliation’ of the complaint. If conciliation fails, ACAS issues a certificate that the early conciliation requirements have been complied with. No tribunal complaint can be presented without this certificate.
This case shows that, if a tribunal application is amended to add a new claim, early conciliation s not required for the added claim.
M resigned during her maternity leave and made various complaints of discrimination. She notified ACAS under the early conciliation process. She then presented her claim to the tribunal. Her former employers stated, in their response to the tribunal claim, that if she had not resigned, disciplinary action would have been taken against her in respect of a matter that had come to light during her maternity leave. M applied to amend her claim to include a complaint that making these allegations amounted to victimisation. The employers applied to have the victimisation claim struck out because the early conciliation requirements had not been complied with.
The EAT refused to strike the victimisation complaint out. The early conciliation rules apply to ‘prospective complaints’, whereas M was an existing claimant; and early conciliation is required in respect of ‘the matter’ to which the claim relates - which is wider than the claim itself. So the additional complaint was already covered by the previous early conciliation. Furthermore, the rules only refer to instituting proceedings - not to amending existing proceedings. There is therefore no requirement for early conciliation when amending or adding to an existing claim.
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