Sainsbury's Supermarkets Limited v Marcia Clark & Ors.

For a multiple employment tribunal claim, the pre-2020 rules required the form to give the name and address of each claimant and respondent, but required only one accurate ACAS early-conciliation number relating to one prospective claimant. The rules did not require a separate number for every claimant.

Rules governing rejection at the commencement of proceedings are preliminary administrative filters. If a claim was not rejected under those rules, a respondent could not later contend that it should have been rejected. It could instead seek dismissal or strike-out, and the tribunal could waive procedural non-compliance under Rule 6. This differs from a claimant’s substantive failure to complete statutory early conciliation, which prevents valid institution of proceedings.

Numerous supermarket employees brought equal-pay claims on multiple ET1 forms. Every affected claimant had undertaken ACAS early conciliation and obtained a certificate, but the forms gave only the lead claimant’s individual certificate number. The certificates bearing the other claimants’ names were not identified by a number on the forms.

The Employment Tribunal rejected the category 4 claims. The Employment Appeal Tribunal allowed those claimants’ appeal, restored their claims, and dismissed the employer’s cross-appeal. The employer appealed on the sole issue whether the applicable Employment Tribunal Rules required an early-conciliation number relating to each claimant on a multiple claim form.

1. Appeal dismissed unanimously. Bean LJ, with whom Asplin and Nugee LJJ agreed, held that the Employment Appeal Tribunal had correctly restored the claims.

2. On the ordinary wording of Rules 10(1)(b) and 10(1)(c), a multiple claim form had to contain the name and address of each claimant and respondent, but only an early-conciliation number. It was therefore sufficient that the form contained an accurate number from a certificate on which one prospective claimant was named. The court endorsed the construction favouring a just outcome where the Rules permit it, stated in Software Box v Gannon, [2016] ICR 148.

3. There was also a more fundamental reason. Rules 10 to 12 formed a preliminary administrative filter before service. Rejection under those rules, subject to reconsideration under Rule 13, was no longer available once the claim had passed that stage. A respondent could raise substantive or procedural objections later, including by seeking dismissal under Rule 27 or strike-out under Rule 37. Rule 6 then gave the tribunal a wide power to waive non-compliance with the Rules.

4. Section 18A of the Employment Tribunals Act 1996 makes actual early conciliation and possession of a certificate a condition of instituting proceedings unless an exemption applies. A claimant who had not complied could not validly institute a claim. That substantive defect differed from an error in recording a certificate number where early conciliation had in fact occurred.

5. Sterling v United Learning Trust and E.ON Control Solutions Ltd v Caspall, [2020] ICR 552, were wrongly decided and overruled insofar as they treated an incorrect early-conciliation number as requiring rejection notwithstanding actual statutory compliance. The court explained that Trustees of the William Jones’s Schools Foundation v Parry, [2018] EWCA Civ 672, concerned a form too defective to be sensibly answered and did not establish that every breach of Rule 12 meant no valid proceedings had begun.

• Court of Appeal (Civil Division): dismissed the employer’s appeal and upheld the restoration of the category 4 claimants’ claims: [2023] EWCA Civ 386.

• Employment Appeal Tribunal: HHJ James Tayler allowed the claimants’ appeal from the Employment Tribunal, reinstated their claims, and dismissed the employer’s cross-appeal.

• Employment Tribunal, Birmingham: Employment Judge Camp held that the category 4 claimants’ claims had to be rejected because no number from a certificate naming them appeared on their claim forms.