Abel Estate Agent Ltd & Ors v Elizabeth Reynolds

The Employment Appeal Tribunal held that the Employment Tribunal erred in rejecting a section 48 Employment Rights Act 1996 claim under rule 12 because the failure to obtain an early conciliation certificate was not identified when the claim was presented. The correct approach, following Clark v Sainsbury’s Supermarket Ltd [2023] ICR 1169, was to consider whether the claim should be dismissed under rule 27 for want of jurisdiction or struck out under rule 37, taking account of the purpose of the early conciliation scheme in section 18A of the Employment Tribunals Act 1996 and the accompanying 2014 Regulations.

On full consideration the Tribunal refused the respondents’ applications under rules 27 and 37 and concluded that non‑compliance with section 18A did not, as a matter of construction, deprive the Employment Tribunal of competence to hear a properly presented section 48 claim. Pryce v Baxterstorey Ltd [2022] EAT 61 was not followed. The claim was remitted to the Employment Tribunal to be decided on the merits.

Background and parties: The claimant, Ms Reynolds, brought claims including unfair dismissal (section 111 ERA 1996), an application for interim relief (section 128 ERA 1996) and a separate section 48 ERA 1996 claim against individual respondents. The section 48 claim required prior contact with ACAS under section 18A of the Employment Tribunals Act 1996 but no early conciliation certificate was obtained before presentation. The Employment Tribunal did not spot the omission on presentation, later rejected the section 48 claim under rule 12 and then permitted an amendment which effectively re‑commenced the identical section 48 claim.

Procedural posture: The respondents appealed the Employment Tribunal's case management decision (Case Management Summary sent 13 November 2023). The respondents contended the section 48 claim should not have been permitted because the early conciliation requirement had not been met, that the judge failed to consider time limits in that context, and that the claim ought to have been dismissed as outside the Tribunal's jurisdiction or struck out rather than rejected and then re‑added by amendment.

Issues framed: (i) whether failure to obtain an early conciliation certificate under section 18A(8) ETA 1996 deprives an Employment Tribunal of competence to hear a section 48 claim; (ii) whether the Employment Tribunal should have dismissed the claim under rule 27 or struck it out under rule 37 rather than permitting amendment; and (iii) whether the judge’s exercise of discretion in permitting amendment was legally correct.

Reasoning: The Appeal Tribunal concluded that the Employment Tribunal erred in relying on rule 12 to reject the claim once the point was not taken at presentation. Applying the structure of the Rules and the purpose of early conciliation as set out in the 2014 Regulations, the Tribunal held that section 18A does not operate as an absolute jurisdictional bar to consideration of a claim that has been presented without a certificate. The early conciliation scheme is intended to encourage claimants to use ACAS before starting litigation and rules 10 and 12 provide an administrative means to enforce that requirement at presentation; they do not, properly construed, remove the Tribunal's competence to hear the merits if the omission is identified later. The EAT followed the reasoning in Clark, declined to follow Pryce, and applied rules 27, 37 and rule 6 principles (waiver/relief for irregularity) in reaching its conclusion. The Tribunal also took account of the factual position (including the interim relief timing pressures and lack of prejudice to respondents) in refusing to dismiss or strike out the claim.

Disposition: The appeal was dismissed, the Employment Tribunal’s rule 12 decision and the related amendment order were set aside, and both the unfair dismissal and section 48 claims were remitted to the Employment Tribunal for determination on the merits.

The appeal is dismissed. The Employment Tribunal erred in rejecting the section 48 claim under rule 12; on proper construction section 18A of the Employment Tribunals Act 1996 does not deprive the Employment Tribunal of competence to hear a section 48 claim presented without an early conciliation certificate. The EAT set aside the rule 12 rejection and the related amendment order, refused the respondents’ applications under rules 27 and 37, and remitted the claims to the Employment Tribunal for consideration on their merits. Clark v Sainsbury’s Supermarket Ltd was applied and Pryce v Baxterstorey Ltd was not followed.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Case Management Summary sent to parties on 13 November 2023) that had rejected the section 48 claim under rule 12 and then permitted amendment. The EAT [2025] EAT 6 dismissed the appeal and remitted the claims to the Employment Tribunal.