Akhigbe v St Edwards Home Ltd & Ors

It is not correct that an early conciliation certificate is necessarily single-use for all proceedings. Instead, whether a later claim may rely on an earlier EC certificate depends on whether both claims "relate to" the same "matter" under Employment Tribunals Act 1996 s.18A(1).

That is a question of fact and degree for tribunals to decide by common sense. If successive claims by the same claimant against the same respondent relate to the same matter, a fresh EC certificate is not automatically required.

However, a duplicative second claim that seeks to relitigate a struck-out claim may be rejected as an abuse of process.

The claimant brought a whistleblowing and related employment claim after obtaining an ACAS early conciliation (EC) certificate. His first claim was amended and ultimately struck out. While an appeal of that strike-out was pending, the claimant issued a second ET1 relying on the same EC number and adding a race discrimination allegation linked to the same factual matrix.

The employment judge rejected the second claim on the basis that the claimant was "using old ACAS number" and cited Rule 12(1)(c) of the Employment Tribunal Rules of Procedure 2013. The claimant appealed that rejection to the Employment Appeal Tribunal.

The central question was whether the second claim related to the same "matter" for the purposes of the early conciliation requirement and whether the second claim was an abuse of process.

(1) Overall disposition: The appeal is dismissed. The decision to reject the second claim is set aside insofar as it relied on an incorrect application of Rule 12(1)(c), but the claim is nonetheless properly rejected as an abuse of process under Rule 12(1)(b).

(2) Legal principle on early conciliation: Section 18A(1) of the Employment Tribunals Act 1996 requires a prospective claimant to provide prescribed information to ACAS in respect of "any matter" before starting relevant proceedings. The word "matter" should not be given an artificially narrow meaning. A single matter may encompass multiple causes of action and successive proceedings.

(3) Question of fact and degree: Whether a later claim may rely on an earlier EC certificate is a question of fact and degree. Tribunals must apply commonsense and consider whether the subsequent proceedings "relate to" the same matter as the earlier EC certificate. Simler J's formulation in [2017] ICR 73 (Compass Group) correctly expresses the approach.

(4) Application to the present case: The employment judge erred by not addressing the factual question of whether the two claims related to the same matter and by treating the existing EC certificate as unusable without fresh analysis. The second claim in substance reiterated and amplified the first claim and added a race claim rooted in the same factual matrix.

(5) Abuse of process: Independently, the second claim was a manifest abuse of the tribunal process. It duplicated a claim already struck out and sought to relitigate matters subject to the pending appeal. The addition of a race discrimination heads-up did not convert the claim into a distinct matter. No reasonable tribunal would have allowed the second claim to proceed.

(6) Order: The judge's rejection on Rule 12(1)(c) is set aside. The rejection is upheld on the correct ground that the second claim was an abuse of process under Rule 12(1)(b). The appeal is dismissed.

1. Employment Appeal Tribunal: Appeal dismissed; judgment delivered 8 March 2019 (this judgment).
2. Watford Employment Tribunal: Employment Judge Bedeau issued a letter dated 28 December 2017 rejecting the second claim as using an "old ACAS number"; reconsideration letter dated 6 March 2018 upheld rejection (cited in the EAT judgment).