M Clark & Ors v Sainsburys Supermarkets Ltd & Anor

In a multiple employment tribunal claim, Rule 10 of the Employment Tribunal Rules 2013 requires the claim form to contain an early-conciliation number. It does not require a separate number, or a number relating to each individual claimant, where the wording does not impose that requirement.

The gatekeeping rules must be applied as written. They cannot be expanded by reading in words merely because a more demanding requirement might better enable checks of compliance. Actual failure to undertake early conciliation remains a substantive bar to instituting proceedings.

A cross-appeal is brought by a respondent against an appellant. It cannot be used to challenge a determination concerning another respondent who did not appeal.

This was an appeal in long-running equal-pay litigation brought by employees of Sainsbury's Supermarkets Ltd and Lloyds Pharmacy Ltd. The claims had been presented on multiple claim forms. Every claimant had undertaken ACAS early conciliation, but the forms did not always include a number from a certificate on which each individual claimant was named.

The Employment Tribunal permitted most claims to proceed but rejected the claims of the Category 4 claimants, whose names did not appear on any early-conciliation certificate identified by a number on their claim form. Those claimants appealed. The respondents purported to cross-appeal against the Tribunal's refusal to reject other claimants' claims.

The central issues were the meaning of “an early conciliation number” in Rule 10 of the Employment Tribunal Rules 2013 in multiple claims, and whether a respondent could cross-appeal against parties who had not themselves appealed.

1. Appeal allowed. The Category 4 claims were reinstated. The purported cross-appeal was dismissed because it was not a valid cross-appeal; it would in any event have failed on the merits.

2. Rule 10(1)(c) of the Employment Tribunal Rules 2013 requires a claim form to contain one of three alternatives, including an early-conciliation number. In contrast with Rule 10(1)(b), which expressly requires the name and address of each claimant and respondent, the rule does not state that a number must be supplied for each claimant.

3. Section 6 of the Interpretation Act 1978 did not justify treating the singular expression as imposing a plural requirement. The contrasting drafting of Rule 10(1)(b) and (c) showed that the context did not permit that construction. Treating the expression as plural would also fail to identify which, among several possible numbers, had to be entered. The tribunal could not read words into the rule to require a number relating to every claimant.

4. The rules are gatekeeping provisions. A claim form containing a genuine early-conciliation number may pass that procedural gateway even though a claimant's actual compliance requires later examination. If a claimant subject to the statutory requirement had not undertaken early conciliation, the proceedings would be a nullity as a matter of substance. That consequence did not arise here because all claimants had complied.

5. The contemporaneous Rule 9 restriction, allowing a joint claim form only where claims were based on the same set of facts, reinforced the literal construction. In many such cases a claimant would have been able to rely on the early-conciliation exemption available where another person had complied in the same dispute and the proceedings were brought on the same form. It was nevertheless good practice to record all claimants' numbers.

6. A cross-appeal arises in response to an appeal and is brought by a respondent against the appellant. Claimants who had not appealed were respondents to this appeal. The respondents could not use a cross-appeal to challenge the determinations made in their favour.

• Employment Appeal Tribunal: Allowed the Category 4 claimants' appeal and dismissed the respondents' purported cross-appeal: [2022] EAT 143.

• Employment Tribunal: Employment Judge Camp allowed claims to proceed where a number on the claim form appeared on an early-conciliation certificate naming the claimant, but rejected the Category 4 claims.