Abel Estate Agent Ltd & Ors v Elizabeth Reynolds

Failure to obtain an early conciliation certificate before presenting a claim does not, where the omission is discovered after the claim has not been rejected and proceedings have begun, deprive an Employment Tribunal of competence to determine the claim. Section 18A of the Employment Tribunals Act 1996 requires prompt rejection through the procedural rules, but does not impose an absolute jurisdictional bar.

The Tribunal must instead consider its powers to dismiss under rule 27, strike out under rule 37, and waive procedural irregularity under rule 6. The statutory purpose is to encourage pre-claim conciliation, not to impose a punitive nullity once litigation has commenced.

The claimant presented an unfair-dismissal claim, accompanied by an interim-relief application, and a claim under section 48 of the Employment Rights Act 1996. The interim-relief-related claim was exempt from early conciliation, but the section 48 claim was not. No early conciliation certificate had been obtained.

The Employment Tribunal did not identify the omission when the claim was presented. Several months later it rejected the section 48 claim under rule 12, but permitted an amendment advancing substantially the same claims against the individual respondents. The respondents appealed.

The central issue was whether non-compliance with section 18A of the Employment Tribunals Act 1996 deprived the Tribunal of jurisdiction, requiring dismissal or strike-out, after the claim had proceeded beyond the rejection stage.

1. Appeal dismissed. The Employment Tribunal erred in retrospectively rejecting the section 48 claim under rule 12. Under Clark v Sainsbury’s Supermarket Ltd, rejection is a preliminary filter. Once a claim has not been rejected and has progressed, a respondent cannot contend that it should later have been rejected. The available procedural routes are dismissal under rule 27 or strike-out under rule 37.

2. The Appeal Tribunal exercised the Employment Tribunal’s powers under section 35 of the Employment Tribunals Act 1996 and refused the respondents’ applications under rules 27 and 37. There was no need for remittal on that discrete issue.

3. On its proper construction, section 18A does not remove the Tribunal’s competence to hear a section 48 claim merely because the claimant had not first contacted ACAS or obtained a certificate. Section 18A(8) is directed to the prospective claimant’s presentation of proceedings. It does not state that a Tribunal which receives a claim lacks competence to determine it.

4. The early-conciliation provisions and rules 10 and 12 provide a mechanism for early rejection, enabling a claimant to consider ACAS conciliation before litigation begins. That purpose is not served by treating a claim as a nullity after it has been served and the parties have embarked on litigation. At that stage, mandatory dismissal would be punitive and may create a time-barred replacement claim.

5. Pryce v Baxterstorey Ltd was not followed. Its conclusion that non-compliance with early conciliation affected jurisdiction was manifestly incorrect. The dictum in Clark concerning Cranwell v Cullen was also not followed, since it did not form part of Clark’s ratio and concerned prompt rule-12 rejection.

6. In any event, strike-out was inappropriate. The claimant’s omission was explicable in light of the seven-day deadline for interim relief; the Tribunal’s own failure to identify the defect was the operative cause of the later procedural position; and the respondents suffered no forensic prejudice. The section 48 and unfair-dismissal claims were remitted to the Employment Tribunal for determination on their merits.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal’s retrospective rejection under rule 12 and consequential amendment order were set aside; refusal of dismissal or strike-out was substituted.

• Employment Tribunal: following a case-management hearing, it rejected the section 48 claim under rule 12 but permitted an amendment advancing section 48 claims against the individual respondents.