Employment Tribunal still had jurisdiction to hear a claim even where no Acas Early Conciliation took place

Reynolds v Abel Estate Agents

In the recent case of Reynolds v Abel Estate Agents the employee brought claims in the Employment Tribunal without first informing Acas and without entering into Acas early conciliation. Ms Reynolds, who worked for an estate agents, brought claims for unfair dismissal and claims under section 48 of the Employment Rights Act 1996 where a worker has the right not to be subjected to any detriment due to making a protected disclosure. Ms Reynolds believed that she had been made redundant because she had made a protected disclosure to her employer.

An Employment Tribunal can reject a claim in certain circumstances, for instance if an early conciliation certificate number is not provided on the claim form or where an exemption from early conciliation has been incorrectly claimed. However, the lack of Acas early conciliation was initially overlooked by the Employment Tribunal and by the employer in this case, and the claim proceeded.

Some months later, the employer highlighted the oversight, leading the Employment Tribunal to reject the claim under rule 12 of the Employment Tribunal Rules (which sets out the procedure for rejecting claims for failure to undertake early conciliation). The Employment Tribunal then allowed Ms Reynolds to amend her claim to re-commence identical protected disclosure claims, limiting the practical impact of the rejection.

The employer appealed, arguing the Employment Tribunal erred by rejecting the claims under rule 12 rather than striking them out for lack of jurisdiction. The Employment Appeal Tribunal (EAT) agreed that the Employment Tribunal’s reliance on rule 12 was incorrect once the claim had been accepted, and that the claims should not have been re-commenced as they were. However, the EAT held that Ms Reynolds’ failure to complete Acas early conciliation did not mean the Employment Tribunal had no jurisdiction to hear the claims.