Do Employment Tribunals have jurisdiction to hear claims without an ACAS Early Conciliation Certificate? Reynolds -v- Abel Estate Agent [2025] EAT 6

The necessity of an ACAS Early Conciliation Certificate

Most employment claims must be issued within 3 months less one day from either the date of dismissal or the date of the last detriment complained of. If the claim is presented “out of time,” the Employment Tribunals (“ET”) hands are tied, and will usually order that it does not have jurisdiction to hear the claim or part of the claim.

Pursuant to section 18A(8) of the Employment Tribunals Act 1996 (“ETA 1996”), before issuing proceedings in the ET however, it is first mandatory to undergo the ACAS Early Conciliation (“EC”) process. ACAS will seek to facilitate a settlement between the parties. If this is not possible, ACAS will issue an EC Certificate – any tribunal claim can then be issued.

Reynolds -v- Abel Estate Agent [2025] EAT 6

Ms Reynolds issued proceedings against her former employer for unfair dismissal and whistleblowing detriment. The claim also included a further five respondents. However, Ms Reynolds failed to obtain an EC Certificate first before issuing her claim in breach of section 18A of the ETA 1996.

The Employment Tribunal (“ET”) did not notice the error and accepted her claim.

Several months later at a Preliminary Hearing (“PH”), the Respondents contended that Ms Reynolds’ claim should be rejected in accordance with section 18A(8) of the Employment Tribunals Act 1996. The Tribunal rejected the claim but allowed Ms Reynolds to amend her claim and continue with the whistleblowing detriment claim.

Employment Appeal Tribunal (“EAT”) Judgment

The Respondents appealed to the EAT contending that the tribunal should have struck out the claim entirely rather than allowing it to continue by way of an amendment.

The key issue for the EAT to determine was whether the failure to comply with the EC process under section 18A of the Employment Tribunals Act 1996, deprived the Employment Tribunal of jurisdiction to hear the claims, and whether the procedural failure meant that the claim should be automatically dismissed or struck out in accordance with the established authority of Clark v Sainsbury’s Supermarket Ltd [2023] ICR 1169.

The Honourable Mr. Justice Swift decided that as the ET had initially failed to notice the procedural error of the Claimant not complying with the EC process and had accepted the claim, it was then wrong for the ET to reject the claim at the PH stage and accept it on amendment. The correct course of action where the claim had already been accepted, was to consider whether or not the claim should be struck out – that was not done here. The EAT also made it clear that the EC requirement is intended as a procedural safeguard and even if a Claimant failed to properly comply with the process, the ET still had jurisdiction hear the case. In the circumstances, the Respondents’ contention that the claim was invalid as a result of the procedural defect was rejected, and the ET’s decision to allow the claim to proceed was upheld.

This case highlights the importance of ensuring that the EC process is complied with, however, depending on the specific facts and circumstances of a case, any failure to comply with the process may not necessarily be fatal and the ET may still have jurisdiction to hear the claim.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

3 February 2025