11 October 2016

How much of a claim must have been first conciliated?

This article was written by Cerys Williams, Counsel

The introduction of early conciliation mean that employees can only bring a claim if they have first undertaken early conciliation through ACAS. However, one of many questions left open by the regulations was this: what happens if additional facts or heads of claim are included in the subsequent legal proceedings? Does this mean that a further round of early conciliation to deal with the new issues must be commenced or is it sufficient that some of the issues were conciliated?

The point is important in practice because it is currently difficult for employers to assess the validity of claims submitted to the tribunal that do not correspond exactly to the issues raised in the conciliation.

The recent case of Compass Group UK & Ireland Ltd v Morgan has shed at least some light on the point. In that claim, an employee had commenced early conciliation over disability-related disputes, while still in employment. She could not defer the conciliation as she was nearing the end of the limitation period. She received an early conciliation certificate in respect of those allegations, allowing her to commence proceedings. Subsequently, she resigned and asserted constructive dismissal then brought proceedings covering both the conciliated issues and the alleged constructive dismissal.

The tribunal allowed the constructive dismissal elements of the claim to proceed, even though they had not been conciliated. They said that there should be a broad interpretation of the regulations requiring conciliation to have occurred "in relation to any matter" that was to be litigated and that this did not require every single possible cause of action to have been mentioned. There was no strict rule saying that only matters that occurred before conciliation could be included in the claim.

This is the latest in a series of cases that indicate that the courts will take a broad and flexible approach to whether claimants have complied with the requirement for early conciliation, with other decisions allowing substitution of parties and amendments to a claim without additional conciliation requirements.

This relaxed approach perhaps lacks the rigour that employers might hope for and could even be said to undermine the purpose of the legislation in giving the parties a proper opportunity to discuss and resolve the issues before resorting to litigation. Nevertheless it brings welcome certainty on what the obligations are and the limited scope for challenging inadequate conciliation.

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