ACAS Early Conciliation Certificates
In the case of Compass Group UK and Ireland v Morgan, the Employment Appeal Tribunal considered whether an ACAS Early Conciliation Certificate only applies to matters that have taken place before the certificate is issued or whether, it was possible for the certificate to apply to related matters which occurred after the date of the Early Conciliation Certificate. The Employment Appeal Tribunal stood by the Employment Tribunal’s decision at first instance, where it found that it had jurisdiction to hear a claim of constructive dismissal, despite the fact that the employee resigned after the Early Conciliation Certificate had been issued.
The Enterprise and Regulatory Reform Act 2013 does not set a statutory requirement for the matters complained of to pre-date an Early Conciliation Certificate. The obligation to provide ACAS with the prescribed information “relating to any matter” is stated in flexible language and interpreted broadly.
The Employment Appeal Tribunal’s approach in this case is consistent with its earlier treatments of cases under the now defunct disciplinary and grievance regulations around a decade ago. The Courts have generally looked to do what they can to encourage parties to reach an amicable settlement of the issues without recourse to the Courts, whilst at the same time trying to ensure that there is not a prohibitively formal process which may prevent employees from bringing claims.
The Employment Appeal Tribunal has always sought to limit the hoops which employees need to jump through in order to make a claim to the Tribunal. This approach is not surprising, given the foundations of the Employment Tribunal system as a justice system accessible to employees and employers representing themselves.
The Employment Appeal Tribunal did, however, accept that a link should be established between the issues raised in the Early Conciliation Process and those raised in the Claim Form and suggested that there was scope to challenge such matters. Nevertheless, the Employment Appeal Tribunal suggested that it did not anticipate such challenges routinely and regarded the prospect in such disputes of ACAS officers giving evidence as to the matters raised in early conciliation as undesirable and unnecessary, save in exceptional circumstances. This element of the decision fails to provide adequate certainty on the issue and accordingly, we may expect this matter to be the subject of further appeals where employers are looking for grounds to challenge the jurisdiction of the Employment Tribunal. However, it would seem that the lack of formality in the way in which issues are notified to ACAS is likely to make policing this issue difficult.
The case, once again, illustrates that the employment litigation process is often a complex one. We recommend that parties always take legal advice, where possible.