Autumn Update

Circular No: NCP/192/17 Our Ref: LA/11/2017 9th November 2017

To: Branches, Regional Councils & Regional Offices

Dear colleague,

Autumn Update

1. Conciliation and Certificates (1) Before starting tribunal proceedings, claimants have to submit separate early conciliation (EC) forms to Acas for each employer against whom they want to submit a claim. In De Mota v ADR Network and The Co-operative Group Ltd, the Employment Appeal Tribunal (EAT) held that even if the claimant fails to submit separate forms, that does not mean the EC certificate issued by Acas is invalid. Mr de Mota was employed from 2012 until 2015 as an LGV driver for ADR which assigned him to work for the Co-op. After being “suspended” by the Co-op, he started work elsewhere. He subsequently submitted a completed EC form to Acas prior to lodging a number of tribunal claims. Under Rule 4 of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014, claimants are required to present a separate EC form for each employer (known as a respondent). However, Mr de Mota did not do this and simply wrote on the form that both ADR and the Co-operative Group were his employers.

Despite this, Acas issued him with a certificate, after which he submitted a tribunal claim which named ADR and the Co-op as two separate respondents, but with the same EC number. At a preliminary hearing, the tribunal dismissed his claim on the basis that it did not meet the requirements in Rule 8 of the 2014 Regulations that the EC certificate must contain “the name and address of the prospective respondent” (singular), with “respondent” defined as “the person (singular) against whom proceedings are brought in the Employment Tribunal”.

As his certificate did not name either the first or second respondent but “a non-existent entity” whose name was a combination of the two, he had not provided the “prescribed information” in the “prescribed manner”, as required under section 18A(1) of the Employment Tribunals Act (ETA) 1996. Allowing the appeal, the EAT held that it was clear from recent case law that the purpose of the provisions was not to require or enforce conciliation nor to encourage satellite litigation, but to build in a “structured opportunity” for conciliation to be considered. As the focus of section 18A(8) of the ETA was on whether the prospective claimant actually had a certificate, the prohibition on bringing a tribunal claim applied only if they did not.

In any event, it was clear that Acas was not bound to reject the claim even if the prospective claimant did not provide the “prescribed information” in the “prescribed manner” under section 18(A)(1). Apart from anything else, if the parties or the tribunal itself could go behind the certificate, why would that only apply in respect of the completed form? It was therefore “inconceivable” that Parliament intended the parties to be able to mount any challenge in the subsequent proceedings based on these rules.

It followed that the employment judge was wrong to “look behind” the certificate and find that Mr de Mota had failed to provide the “prescribed information” in the “prescribed manner” on the notification form. The judge was also wrong to hold that Acas had issued an unlawful certificate (as this was the logic of his reasoning) as Rule 4 only applies to the EC form, not the certificate that Acas issues. As there was no reason to imply a mandatory requirement relating to the EC certificate that was not in the rules, the certificate was valid.

The appeal was therefore allowed and the matter remitted to the tribunal to continue the proceedings. Whilst this case shows the flexible approach the EAT has adopted regarding Acas Early Conciliation, prospective claimants to an employment tribunal claim should nevertheless take care when triggering EC and ensure the correct information is inserted upon completing the notification form.  If there are two respondents to a prospective claim, claimants should ensure that they complete two separate notification forms.  Prospective claimants should also ensure they correctly name the respondent(s).  If a prospective claimant follows the correct process when triggering EC, this will eliminate any argument that it was not sufficiently complied with once proceedings have been issued (2) Further to the Legal Update dated 13 July 2017, in particular to the issue of time spent in Early Conciliation and that a second Certificate will have no impact on time limits this update is to provide further practical advice:

Following the reporting of the case Commissioners for HM Revenue and Customs (HMRC) v Garau, the Tribunals are taking a strict approach to instances where there is more than one ACAS early Conciliation Certificate that has been issued. In a recent case the Tribunal rejected the claims for individuals where a multiple ACAS Early Conciliation application was submitted which included the names of some members who also had an individual Early Conciliation Certificate issued. This was despite the rules permitting Claimants of similar claims to be added to a multiple Claimant claim whose name was not mentioned on the ACAS Early Conciliation Certificate.

Generally, Claimants can be added to a claim as a multiple regardless of whether they were named on a multiple or individual Early Conciliation Certificate. However, if they already have an individual ACAS Early Conciliation Certificate they cannot rely upon a subsequent multiple ACAS Early Conciliation Certificate to extend time further. Even if this results in numerous individual claims of a similar nature having to be submitted.

Therefore, there is a strict time limit of three months less one day from the date of the incident complained of to lodge a claim form with an Employment Tribunal. Before a claim can be submitted to the Employment Tribunal, a Claimant must first have registered with the Advisory, Conciliation and Arbitration Service (“ACAS”) and attempted a process known as Early Conciliation to try and resolve their claim. This must be done within the three month time limit.

Registering with ACAS “stops the clock” for the limitation period for issuing the claim.  If either party does not wish to engage in Early Conciliation or if settlement is not reached within the applicable timeframe (generally up to one month) then ACAS will issue an Early Conciliation Certificate to the Claimant as proof that he or she has contacted them to try and resolve their claim. Once this Certificate is issued the limitation clock beings to run again and it is only once the Claimant has received the Certificate that he or she is allowed to present a claim to the Employment Tribunal.

It is therefore important to note that extension of time applies only if time spent in Early Conciliation takes place during the primary limitation of three months less one day from the date of the matter complained of and not before, and a second Certificate will not modify time limits.

2. Maritime Matters Seahorse Maritime Ltd v Nautilus International. The EAT held that territorial jurisdiction principles laid down by the House of Lords in Lawson v Serco Ltd in relation to unfair dismissal under ERA 1996 also apply to the right  to a protective award for failure to inform and consult under s188 of TULR ( C)Act 1992. Therefore an employee’s rights to collective consultation for redundancy purposes will depend on the employee’s connection with GB and British employment law. EAT upheld a tribunal conclusion that a shops crew employed under contracts governed by English Law and living on ships stationed in UK ports were covered by s188.

The case provides confirmation that the territorial scope of an employee’s right to collective consultation in relation to redundancy under s188 TULR(C) Act is determined in the same way as individual rights under the ERA. This means that where an employer seeks to make employees not working in GB redundant, the question of whether it must go through collective consultation procedure will depend on the employees connection to GB and British employment law; a question of fact in each case. In this case the relevant factors were that the employees were domiciled in the UK; worked under contracts governed by UK law and that a UK based agency carried out employee administration were fairly strong evidence.

3. Pension Benefits In Williams v Trustees of Swansea University Pension & Assurance Scheme and anor, the Court of Appeal held that a disabled person who is treated advantageously in consequence of their disability, but not as advantageously as a person with a different disability, cannot bring a claim under section 15 of the Equality Act 2010 Mr Williams, who retired at the age of 38 because of his disabilities, was entitled to a pension which was calculated as though he had worked until retirement age. It was due to be paid immediately on his retirement and without actuarial reduction but was based on his pensionable salary at the date of his ill-health retirement.

As he had reduced his hours to accommodate his disabilities two years previously, he was only entitled to half the pensionable salary. He complained that paying him half of a full-time employee’s entitlement was contrary to section 15 of the Equality Act 2010.  Section 15 states that it is discrimination arising from disability when a person (A) treats a disabled person (B) unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (the justification defence).            Whilst acknowledging that the scheme was “particularly generous”, the tribunal held that Mr Williams had “of necessity” been treated unfavourably as he had received a lower pension than he would otherwise have done because of his disability.

The EAT disagreed, holding that the tribunal was wrong to equate the meaning of “unfavorable” with the concept of “detriment” used elsewhere in the Equality Act. It was hard to understand how treatment that was advantageous could be “unfavorable” just because it could have been more advantageous. And the Court of Appeal agreed. It pointed out that, using the logic advanced by Mr Williams, there would be nothing to stop a disabled claimant who had applied for and secured a part time job from making a claim under section 15 that they would have worked full time were it not for their disability. It could not have been Parliament's intention for a disabled claimant to be able to claim that they had been the victim of unfavorable treatment under section 15 and throw the onus onto the employer to establish that the part time salary was a proportionate means of achieving a legitimate aim.

Disabled claimants arguing that they have been treated “unfavorably” are effectively comparing themselves with someone else, namely another disabled member of the pension scheme with a different medical history. Although Mr Williams’ pension was less favorable than that of a hypothetical comparator suddenly disabled by a heart attack or stroke, it was far more favourable than the pension he would have received, had he not become permanently incapacitated from his job.

No authority was cited to the Court to support the view that a disabled person who is treated advantageously in consequence of their disability, but not as advantageously as a person with a different disability, has a valid claim under section 15 which was then subject only to the justification defence. Otherwise it would call into question the terms of pension schemes or insurance contracts which confer increased benefits in respect of disability caused by injuries sustained at work, or which make special provision for disability caused by one type of disease (for example cancer). Treatment which conferred advantages on a disabled person, but would have conferred greater advantages had their disability arisen more suddenly, could not therefore amount to "unfavorable treatment" within section 15.

The significance of this decision is the confirmation that the term “unfavorable” has built into it the concept of a comparison with the treatment of others.  It is not an absolute concept or a subjective one.

Please bring to the attention of your members and activists.

Yours sincerely

  Mick Cash General Secretary