The two recent cases set out below highlight the flexible approach that the Employment Appeal Tribunal (EAT) seems to be taking in relation to Early Conciliation (EC) and the Employment Tribunal's (ET) powers to make case management orders at any stage of proceedings. Both cases dealt with situations in which there had been a TUPE transfer of staff.
Mrs Mist was employed by Derby Hospitals NHS Foundation Trust (the Hospital Trust). In January 2014, the hospital decided to award the contract for the particular service on which Mrs Mist spent 80 per cent of her time to Derby Community Health Services NHS Trust (the Health Trust). Mrs Mist commenced EC against the Hospital Trust (albeit citing the wrong name) and then issued a claim against it. Although Mrs Mist only brought her claim against the Hospital Trust, the particulars of complaint made it clear that she considered that TUPE applied and that there had been a relevant service provision change transfer to the Health Trust. The ET accepted the claim despite the discrepancy between the name of the respondent on the EC certificate and the name of the respondent on the ET1.
Mrs Mist later applied to amend her claim to include the Health Trust as a second respondent and, at a preliminary hearing, the judge granted her application. However, the ET struck out the claim against the second respondent on the grounds that it was presented out of time. Mrs Mist appealed the decision on the basis that the ET had failed to properly apply the Selkent principles (as outlined below).
The ET has the power to allow a claimant to amend its claim under rule 29 of the Employment Tribunals Rules of Procedure 2013. Whether to allow an amendment is a matter of judicial discretion taking into account all the relevant circumstances in a way that is consistent with the requirements of "relevance, reason, justice and fairness inherent in all judicial directions" (Selkent Bus Co Ltd (t/a Stagecoach Selkent) v. Moore  IRLR 661).
The EAT allowed the appeal, holding that the paramount consideration should have been the relative injustice to each party in granting or refusing the amendment, and that the fact Mrs Mist applied to add the second respondent out of time should not be determinative.
The EAT disagreed with the Health Trust's argument that a prospective claimant should be required to provide the correct name of a prospective respondent to Acas in order to protect the respondent's right to engage in the EC process. It considered this to be a fundamental misunderstanding of the EC process, pointing out that a respondent would only be contacted by Acas and given the opportunity to engage in EC if the claimant agreed.
Blue Arrow Limited (Blue Arrow) was a transferee that took over a contract for the management of workers. It wished to bring claims against the transferor, but the identity of the transferor was unclear. Blue Arrow undertook the EC procedure with reference to Drake International Limited (Drake). It then commenced tribunal proceedings against Drake but included in its ET1 a statement that it had not been able to determine the identity of the transferor with certainty and reserved the right to add further respondents to the claim.
In its ET3, Drake identified four wholly-owned subsidiary companies which it claimed employed the transferring employees. It sought to have the proceedings dismissed and argued that the claims against the subsidiaries would be out of time. However, an employment judge allowed Blue Arrow's application for the four subsidiary companies to be substituted for Drake.
Drake appealed, arguing that if Blue Arrow wanted to substitute a respondent to proceedings, having already issued a claim, it had to first contact Acas to obtain a new EC certificate in respect of the new prospective respondents. The EAT dismissed the appeal.
Section 18A of the Employment Tribunals Act 1996 sets out the Acas EC procedure that a prospective claimant must follow before commencing relevant proceedings in any ET (unless one of the exceptions applies). Section 18A(1) states:
"Before a person ('the prospective claimant') presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to Acas prescribed information, in the prescribed manner, about that matter."
The EAT carefully considered the construction of the word "matter". It found that a "matter" can involve an event or events, different times and dates, and, crucially, different people. The EAT also considered the purpose of the EC provisions – they provide an opportunity for parties to take advantage of Acas conciliation if they want to, led by the wishes of the prospective claimant in respect of what is broadly termed a matter. In this case, the claimant had already made it clear that it did not wish to engage in EC.
The decision to allow substitution of a party is a case management decision. The ET has to have regard to the Selkent principles, as set out above, and the overriding objective.
Both of these cases highlight the ET and the EAT's willingness to grant some leeway in compliance with the requirements of EC. They also draw out the distinction between the EC procedure and the case management of proceedings once a claim has been accepted by the ET. What has happened during the EC procedure may be relevant to, but is not determinative of, case management, which is approached in the light of existing authorities (Selkent in particular) and the overriding objective.