Science Warehouse Ltd v Mills: EAT 9 Oct 2015

EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, the Claimant applied to amend to add a new claim (victimisation), which post-dated the ET1. The Respondent objected solely on the basis that the Claimant had not undergone the ACAS early conciliation (‘EC’) process in respect of this new cause of action. The ET did not consider that determinative and allowed the amendment. The Respondent appealed.
Dismissing the appeal. Section 18A Employment Tribunals Act 1996 did not require that the EC process was undertaken in respect of each claim but used the broader terminology of ‘matter’. It also envisaged that the requirement to notify ACAS was one that fell on a ‘prospective’ – rather than an existing – Claimant. Where, as here, the Claimant had previously lodged a valid ET claim (including her EC reference) and was applying to amend to add a new, but related, claim, this was a matter for the ET’s general case management powers under Rule 29 of the ET Rules 2013. The fact that the new claim could not have been the subject of the earlier EC process was not determinative of the application. Here the ET had properly had regard to the factors relevant to the exercise of its discretion and no error of law was disclosed.
The claimant had lodged a claim at the tribunal, but later sought to amend it to add a new claim. The employer resisted saying that the claimant had not taken the subject matter of the new claim to early reconciliation. The Tribunal permitted the amendment relevantly holding: ‘ . . whilst it is usually necessary for an early conciliation certificate and number to be obtained prior to commencing proceedings in the Employment Tribunal, it is not a prerequisite of an amendment application.’
Held: Section 18A: ‘ . . uses the broad terminology of ‘matter’ rather than ’cause of action’ or ‘claim’. It envisages a prospective Claimant and imposes certain obligations in terms of the early conciliation process upon that person, in respect of which there are only limited exceptions (see Cullen) [Cranwell v Cullen UKEATPAS/006/14] (20th March 2015)’
The early conciliation rules did not require the formal setting out of each cause of action, for each claim separately: its adoption of the expression ‘any matter’ and ‘that matter’ was of concepts which were broad, and: ‘Furthermore, Section 18A does not purport to address the case of an existing Claimant, merely that of the prospective Claimant. For those who are existing Claimants who seek to add additional claims to existing proceedings, this will be a matter for the ET, exercising its case management powers . . and applying the well known guidance laid down in cases such as Selkent v Moore [1996] ICR 836.
Does this approach undermine the objective of the EC procedure, as the advocate [for the Appellant] suggests? Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation? [His] fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the ET properly exercising its judicial discretion. An ET is not bound to permit such an application. The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment. If such an application to amend were not permitted, it may be that the Claimant becomes a prospective Claimant in respect of that matter, and there may then be an obligation to invoke the EC procedure unless one of the Section 18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the EC process arises. It is simply a matter of case management.
It seems to me that the most the Respondent can really say is that an ET considering whether or not to allow an amendment might consider the potential avoidance of EC to be a relevant factor. I do not see, however, that it can be determinative. The rationale of the EC scheme is to encourage the settlement of employment disputes before litigation has commenced and positions become entrenched. Apart from the initial obligation to contact ACAS, however, the process is entirely voluntary. If the Claimant has no interest in participating in a conciliation process, she is not obliged to do so; the same is true of the Respondent. EC builds into the ET process a structured opportunity for parties to take advantage of ACAS conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with ACAS and the issuing of an EC certificate’.

[2015] UKEAT 0224 – 15 – 0910, [2016] IRLR 96, [2016] ICR 252
Employment Tribunals Act 1996 18A
England and Wales
CitedSelkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
CitedBritish Newspaper Printing Corporation v Kelly CA 1989
A group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative . .
CitedYork City and District Travel Ltd v Smith EAT 1990
In March 1988 the employers, the bus company, York City and District Travel Limited negotiated an agreement with the trade union varying their employees contracts of employment so as to provide that the employers were entitled to deduct any cash . .
CitedHyde v Lehman Brothers Ltd EAT 4-Aug-2004
. .
CitedOkugade v Shaw Trust EAT 11-Aug-2005
Practice and Procedure: Amendment
In determining the Applicant’s application to amend his originating application so as to include allegations of post employment victimisation. Is it fatal in such an application that the instances of . .

Cited by:
CitedMist v Derby Community Health Services NHS Trust (Practice and Procedure: Amendment) EAT 22-Jan-2016
TRANSFER OF UNDERTAKINGS – Consultation and other information
Application to amend existing ET proceedings to add a . .
CitedDrake International Systems Ltd and Others v Blue Arrow Ltd (Practice and Procedure) EAT 27-Jan-2016
A Claimant brought proceedings against a parent company, and properly completed early conciliation procedures in respect of the matter between them. . .
CitedCompass Group UK and Ireland Ltd v Morgan EAT 26-Jul-2016
Satisfaction of Early Conciliation requirements
EAT Practice and Procedure: Preliminary Issues – This appeal raises a question of procedure in relation to the early conciliation provisions introduced by the Enterprise and Regulatory Reform Act 2013, namely . .
CitedHM Revenue and Customs v Garau EAT 24-Mar-2017
EAT Practice and Procedure : Application/Claim – Preliminary issues
The early conciliation certificate provisions introduced from 6 April 2014 do not allow for more than one certificate of early . .
CitedChard v Trowbridge Office Cleaning Services Ltd EAT 4-Jul-2017
PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Preliminary issues
PRACTICE AND PROCEDURE – Time for appealing
The Employment Judge had erred in law when considering whether an error as to the correct name of . .
CitedDe Mota v ADR Network and Another EAT 13-Sep-2017
Jurisdictional Points – Early conciliation provisions
The Employment Judge erred in law in:
(1) Examining the process prior to the grant of an early conciliation certificate in order to assess whether the Claimant was barred from . .
CitedMinistry of Defence v Dixon EAT 4-Oct-2017
EAT Unfair Dismissal : Dismissal : Ambiguous Resignation –
– Application/claim – Amendment – Appellate jurisdiction/reasons/Burns-Barke –
Unfair dismissal – dismissal – . .

Lists of cited by and citing cases may be incomplete.


Updated: 06 January 2022; Ref: scu.554883