de Mota v ADR Network

Section 18A(8) of the Employment Tribunals Act 1996 focuses on whether the claimant has an early conciliation certificate under subsection (4). The Employment Tribunal should not investigate or criticise the process leading to the certificate. A procedural requirement that separate forms be used for separate prospective respondents does not create an unstated jurisdictional requirement that ACAS issue separate certificates. A certificate naming two respondents may therefore satisfy section 18A(8), particularly where the names, address and relevant dates are clear. Early conciliation provisions should be applied in a way that avoids satellite litigation and technical barriers to access to justice.

The claimant brought Employment Tribunal claims against ADR Network and The Co-operative Group. He had submitted one ACAS early conciliation form naming both respondents, and ACAS issued one certificate naming both. The Employment Tribunal struck out the claims, holding that the claimant had failed to provide the prescribed information in the prescribed manner and that separate certificates were required for separate respondents.

The appeal concerned whether the Tribunal could examine the process preceding the certificate and whether a certificate naming two respondents was invalid under section 18A of the Employment Tribunals Act 1996 and the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014.

1. Appeal allowed. The matter was remitted to the Employment Tribunal to continue the proceedings.
2. Section 18A(8) makes the existence of a certificate under subsection (4) the relevant jurisdictional focus. Parliament did not intend the parties or the Tribunal to examine the steps leading to the certificate. ACAS may process a notification containing missing or inaccurate information rather than reject it. The certificate may therefore be treated as conclusive of compliance with the section 18A requirement. This followed the approach in Mist v Derby Community Health Services NHS Trust [2016] ICR 543.
3. The statutory scheme provides only a structured opportunity for voluntary conciliation. It does not require the claimant to identify the dispute in detail or to engage in meaningful conciliation. The scheme should not generate satellite litigation or formalities that obstruct access to justice.
4. Rule 4 of the early conciliation rules requires separate forms for separate prospective respondents. That requirement concerns the form and the administration of the conciliation process. It does not apply to the certificate, and the rules contain no equivalent mandatory requirement that a certificate name only one respondent.
5. The certificate naming both respondents was consequently valid for section 18A(8), despite the possibility that issuing one certificate had been an administrative error. The alternative argument concerning validity for a lead respondent did not require determination.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal judgment dated 23 June 2016 was allowed. The claims were remitted for continuation.
• Employment Tribunal: The claims against both respondents had been struck out for alleged non-compliance with section 18A of the Employment Tribunals Act 1996.