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Background: ACAS EC is a mandatory step before bringing most Tribunal claims and it pauses the usual time limits to allow parties to try to resolve the dispute. There are exemptions from EC in very limited circumstances, one of which is where a claim for unfair dismissal is accompanied by a claim for interim relief. Interim relief is available only in limited cases and, if granted, requires the employer to continue employing or paying the employee until the claim is finally decided. Such applications must be made within seven days of the effective date of termination.
Facts: The employee, Ms Reynolds, worked for an estate and property management company. Six days after her dismissal, she brought Tribunal claims for whistleblowing detriment and automatic unfair dismissal, alongside an application for interim relief.
She issued her claims without contacting ACAS for EC. Although this was acceptable for her automatic unfair dismissal claim (as this was accompanied with a claim for interim relief) EC should have been mandatory for whistleblowing detriment claim.
The tribunal initially overlooked her failure to start EC and allowed both claims to proceed. The employer did not respond or attend the hearing and a default judgment was issued. The employer then applied for an extension of time to file its response and sought to have the detriment claim rejected because EC had not been started.
Tribunal and EAT decisions
The Tribunal rejected the detriment claim on the basis that she did not have an EC number. However, it permitted Ms Reynolds to amend her automatic unfair dismissal claim to reintroduce the detriment complaint. The employer appealed to the EAT which dismissed the appeal. The EAT said the employer had spotted the error too late and that once a Tribunal has accepted a claim (after reviewing the ET3) it cannot simply reject it because EC was not completed.
The employer appealed.
Court of Appeal decision
The Court of Appeal allowed the employer’s appeal. It said that if an employee starts proceedings without first obtaining an ACAS EC certificate – and no exemption applies -the Tribunal is prevented from hearing that claim. The Court emphasised that the purpose of EC is to reduce unnecessary litigation by encouraging early resolution.
However, the Court also said the EC requirement applies only to the initial presentation of a claim, not to amendments made once proceedings are underway. On that basis, the Tribunal was entitled to use its discretion to allow the employee to amend her claim and reintroduce the same detriment allegations. Particularly because the detriment and dismissal claims were closely linked and the employee’s mistake was understandable given the tight seven-day deadline for seeking interim relief.
Implications:
Where an employee fails to obtain an ACAS EC certificate, the Tribunal cannot hear the claim. However, if there are already existing (valid) proceedings, the Tribunal may exercise its discretion to allow the claim to be added to these.
That said, this is not a ‘free pass’ for employees. Any amendment must still be justified and approved by the Tribunal and the Court of Appeal confirmed that the Tribunal may take into account that allowing the amendment would avoid the EC requirement.
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