Multiple claims: Is one Early Conciliation number sufficient?

The Court of Appeal (CA) in the case of Sainsbury’s Supermarkets Ltd v Clark and others had to consider a multiple claim form where the Early Conciliation (EC) certificate number referred to an EC certificate which did not name all the claimants.

Background

Hundreds of Sainsbury’s employees brought equal pay claims in the Employment Tribunal (ET) in 2015. Prior to submitting their claims, they all applied to ACAS in accordance with s.18A of the Employment Tribunals Act 1996 (EAT 1996). An EC certificate was obtained, and the EC number was included in each ET1 presented to the Tribunal.

At the time of completing the EC process, ACAS adopted different approaches when issuing EC certificates in multiple claims including:

  1. In some cases, ACAS only issued a certificate with a single, multiple EC number (an M number).
  2. Other times, ACAS provided a certificate with an M number and an individual EC number (an R number) for only one of the prospective Claimants whose names appeared in a schedule attached to the EC Certificate.
  3. In other cases, ACAS issued an EC certificate with an M number and an R number for each of the prospective Claimants which appeared in the schedule attached to the EC Certificate.

The ET rejected the claims of one group of claimants whose names appeared on both an EC certificate and claim form, but where the EC number detailed in the claim form was from a different EC certificate in which they were not named.

The claimants whose claims had been rejected appealed to the Employment Appeal Tribunal (EAT) and argued that it is sufficient for one EC number to be given on the multiple claim form for any claimant who brings a claim on that claim form. The EAT allowed the appeal and reinstated the claims holding that it is sufficient for a claim form to contain the number of an EC certificate on which the name of at least one of the prospective claimant’s appears. Sainsbury’s appealed.

The Law

Before presenting a claim to the ET, the prospective claimant must first (unless exempt) refer the dispute to ACAS for early conciliation. ACAS then issues an EC certificate which has a unique reference number which must be included in the claim form.

Rule 12(1) of the Employment Tribunals Rules 2013 provide that Tribunal staff should refer a claim form to an employment judge if the form does not contain an EC number, or the claimant’s name on the claim form was not the same as the name of the prospective claimant on the EC certificate to which the EC number relates.

Decision

The CA dismissed Sainsbury’s appeal and upheld the EAT’s decision that an EC number from a certificate on which the name of only one of the claimants was named, was sufficient.

The CA went on to highlight that the legislative purpose of s.18A of the EAT 1996 requires prospective claimants to contact ACAS and obtain an EC certificate before presenting a claim to the Tribunal. The claimants then can prove – if necessary – that they have undertaken early conciliation by providing the EC number.

The CA made clear that it is not part of the legislative purpose to require that the existence of the EC certificate should be checked before proceedings could be issued, of less importance still is to check whether the certificate number was incorrectly entered or omitted.

Comment

This case highlights that both the EAT and the CA did not wish to strike out claims based on technical issues that lack ‘substantive merit’. From an employer’s perspective this clarifies that ‘technicalities’ in claim forms relating to early conciliation are unlikely to be sufficient to see a claim rejected. If respondents believe a claim should have been rejected for non-compliance, this should be raised as part of a defence, or as soon as possible thereafter.

Case Reference(s): Sainsbury’s Supermarkets Ltd v Clark and others [2023] EWCA Civ 386

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