E Cottrell v Avon Cosmetics Ltd

A tribunal’s administrative notification that a claim has been received or “accepted” does not determine jurisdiction. It cannot cure a failure to comply with the mandatory requirement to obtain an ACAS early-conciliation certificate before presenting proceedings against a prospective respondent.

A party may in an appropriate case be joined by amendment without prior early conciliation. That route depends on an application to join the party; it does not convert an invalid original claim into a valid one. Reconsideration is available only where necessary in the interests of justice and must respect the public interest in finality.

The claimant, who had been supplied to work by an agency, brought employment claims against both the agency and Avon Cosmetics Ltd. She had an ACAS early-conciliation certificate for the agency but none for Avon, although she entered the agency’s certificate number in respect of Avon.

The Employment Tribunal dismissed the claim against Avon for non-compliance with early conciliation. It later refused the claimant’s reconsideration application. The claimant did not appeal the dismissal judgment itself, but appealed the reconsideration judgment.

The only ground permitted to proceed concerned whether Avon should have been added as a respondent by amendment. The central issue was whether the Employment Judge erred by not treating the reconsideration application as an application to join Avon.

1. Appeal dismissed. The appeal concerned only the refusal to reconsider the dismissal of the claim against Avon. It was not an appeal against the original dismissal judgment.

2. Section 18A of the Employment Tribunals Act 1996 imposed a mandatory requirement to contact ACAS and obtain a certificate before proceedings were presented against Avon. Rule 4 of the early-conciliation rules required separate early-conciliation information for each prospective respondent. The claimant had no certificate relating to Avon. The administrative letter stating that the claim had been “accepted” did not confer jurisdiction or preclude a later jurisdictional objection.

3. The authorities recognised that a respondent may be joined by amendment to existing proceedings without prior early conciliation. That principle did not assist the claimant. She maintained that Avon was already a valid respondent and was adamant that she had not, and would not, apply to add Avon as a party. The permitted ground therefore necessarily failed.

4. In any event, the Employment Judge had specifically considered and rejected the possibility of treating the matter as an application to join Avon when giving the original dismissal judgment. Any challenge to that conclusion had to be brought by appeal against that judgment, not through the reconsideration appeal.

5. Under Rule 70 of the Employment Tribunal Rules 2013, reconsideration required necessity in the interests of justice. The reconsideration application raised no new matter capable of justifying revocation of the original rejection.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the refusal to reconsider.
• Employment Tribunal: Employment Judge Foxwell refused reconsideration by a judgment signed on 18 March 2019 and sent on 22 March 2019.
• Employment Tribunal: Employment Judge Foxwell had dismissed the claim against Avon because no ACAS early-conciliation certificate had been obtained for Avon. That dismissal judgment was not appealed.