Elizabeth Reynolds v Abel Estate Agent Ltd & Ors

The early conciliation requirement in section 18A of the Employment Tribunals Act 1996 is a statutory precondition to the institution of relevant proceedings. Where a claimant has not invoked ACAS and no early conciliation certificate has been issued, the Employment Tribunal lacks jurisdiction to entertain the claim. The limited and voluntary nature of the conciliation process does not alter that conclusion. A distinction must be drawn between substantive non-compliance and the omission of an early conciliation number where a certificate already exists. The latter is a procedural defect capable of case-management treatment. Section 18A applies to the institution of proceedings by a prospective claimant, not to amendments or joinder in existing proceedings. Avoidance of early conciliation may be relevant to an amendment application, but is not determinative.

The claimant presented Employment Tribunal proceedings shortly after her dismissal, alleging automatically unfair dismissal for making protected disclosures under section 103A of the Employment Rights Act 1996 and detriment under section 47B. An interim relief application meant that the unfair dismissal claim was exempt from early conciliation, but the detriment claim was not.

The Employment Tribunal rejected the detriment claim at the gateway stage but permitted joinder and amendment so that the claim could proceed. The Employment Appeal Tribunal, in [2025] EAT 6, dismissed the appellants’ appeal on different reasoning. The Court of Appeal considered whether failure to invoke early conciliation deprived the Tribunal of jurisdiction and whether the claim could nevertheless be pursued by amendment.

The court dismissed the appeal in its formal outcome. Sir Nicholas Underhill gave the leading judgment, with Snowden LJ and Falk LJ agreeing.

1. Jurisdiction. Section 18A of the Employment Tribunals Act 1996 imposes a statutory limit on the Employment Tribunal’s power to determine relevant proceedings. The prohibition on a claimant presenting proceedings without an early conciliation certificate necessarily has the corollary that the Tribunal cannot entertain them. The absence of the phrase requiring the Tribunal itself not to consider a claim, as appears in some limitation provisions, was not decisive.
2. The early conciliation process is limited and participation in conciliation is voluntary. That does not prevent Parliament from making prior invocation of the process a mandatory condition of access to the Tribunal. The statutory purpose is to ensure that an opportunity for ACAS conciliation exists before proceedings are instituted.
3. A distinction must be drawn between substantive and evidential non-compliance. Where no early conciliation certificate exists because the claimant did not invoke the process, the defect is jurisdictional even if discovered after the claim has passed the gateway. Where a certificate exists but its number is omitted or inaccurately recorded, the issue is procedural and may be dealt with by case management. The latter was the situation in Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386.
4. The earlier decisions in Pryce v Baxterstorey Ltd, Cranwell v Cullen, and Clark were not binding on the court on the jurisdictional issue, but were persuasive. The court also distinguished the statutory scheme considered in Abercrombie v AGA Rangemaster Ltd [2013] EWCA Civ 1148.
5. Section 18A concerns the institution of distinct proceedings by a prospective claimant. It does not apply to an existing claimant’s application to amend proceedings or join a new respondent. The reasoning in Science Warehouse Ltd v Mills and Drake International Systems Ltd v Blue Arrow Ltd was followed. Avoiding early conciliation may be a factor in the amendment discretion, but cannot determine the application.
6. In the particular circumstances, the claimant’s failure was venial, the detriment claim was closely connected with the unfair dismissal claim, and there was no real prejudice to the appellants. The Employment Tribunal was therefore entitled to permit joinder and amendment under rule 34. Rule 27 was the natural procedural vehicle for giving effect to the jurisdictional conclusion, with any procedural departures capable of waiver under rule 6.

1. Court of Appeal (Civil Division) dismissed the appeal, holding that the original detriment claim could not be entertained for want of jurisdiction, but upholding permission to amend so that the identical claim could proceed.
2. Employment Appeal Tribunal, [2025] EAT 6, dismissed the appellants’ appeal and held that the claim was not required to be dismissed for want of jurisdiction.
3. Employment Tribunal rejected the detriment claim for failure to provide an early conciliation number, then permitted joinder and amendment so that the claim could proceed.