Science Warehouse Ltd v Mills

Section 18A of the Employment Tribunals Act 1996 requires early conciliation in relation to a broad “matter”, not necessarily each individual cause of action. It addresses a prospective claimant who is considering instituting proceedings.

Where a claimant has already presented a valid claim and seeks to amend it to add a related claim, the issue is ordinarily governed by the tribunal’s case-management discretion under Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The absence of a separate early conciliation process is relevant but not determinative. The tribunal must apply the established guidance on amendments.

The claimant had obtained an early conciliation certificate and presented an Employment Tribunal claim concerning pregnancy or maternity discrimination. The respondent’s response disclosed a potential conduct allegation arising during the claimant’s maternity leave.

The claimant applied to amend her claim to add victimisation based on that allegation. The Employment Tribunal allowed the amendment. The respondent appealed solely on the ground that the claimant had not undergone a separate early conciliation process for the additional claim.

1. Appeal dismissed. The Employment Tribunal had not erred in allowing the amendment.
2. Section 18A of the Employment Tribunals Act 1996 deliberately uses the broader expression “matter”, rather than “cause of action” or “claim”. The early conciliation rules do not require a prospective claimant to identify every possible statutory claim or cause of action when contacting ACAS.
3. The statutory scheme is directed to a “prospective claimant”. It does not expressly regulate an existing claimant who seeks to add a claim to proceedings already instituted. Such an application falls within the Employment Tribunal’s general case-management powers under Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
4. The discretion to permit an amendment must be exercised judicially, having regard to relevance, reason, justice and fairness, together with such matters as delay, limitation issues, the nature of the proposed claim and its relationship with the existing proceedings. The principles in Selkent Bus Co Ltd v Moore remained applicable.
5. The possibility that an amendment might avoid a further early conciliation notification may be a relevant factor, particularly where the proposed claim is entirely new. It is not, however, determinative. If the amendment is refused, the claimant may become a prospective claimant in respect of the new matter and may then have to comply with section 18A, subject to any exception.
6. Here the proposed victimisation claim arose after the ET1, was raised promptly, was related to the existing proceedings and was not otherwise opposed. Requiring a second notification in these circumstances would have been a technical exercise. The decision was therefore a matter of case management and disclosed no error of law.

• Employment Tribunal, Sheffield: allowed the claimant to amend her claim to add victimisation.
• Employment Appeal Tribunal: dismissed the respondent’s appeal and upheld the case-management decision.