The claimant brought claims against the respondents, including a claim under section 48 of the Employment Rights Act 1996, for detriment suffered because she had made a protected disclosure. When the claim was presented to the employment tribunal, the tribunal did not pick up that the claimant had failed to contact Acas prior to commencing the proceedings, as required by section 18A(1) of the Employment Tribunals Act 1996. Several months later, at a case management hearing, the tribunal rejected her section 48 claim under rule 12 of the Employment Tribunals Rules of Procedure 2013 because there was no early conciliation certificate, in breach of section 18A(8), but permitted the claimant to amend to recommence her section 48 claims. The Employment Appeal Tribunal (“EAT”) dismissed an appeal by the respondents, concluding that the fact that the claimant had presented her section 48 claim to the employment tribunal in breach of section 18A(8) did not mean that the employment tribunal had no jurisdiction to hear the claim. The respondents further appealed contending that the EAT had erred in its construction of section 18A of the. By way of cross-appeal raised in her respondent’s notice the claimant contended that the employment tribunal had been right to permit the claimant to amend to recommence her section 48 claim.
On the appeal and the cross-appeal —
Held, appeal dismissed and cross-appeal allowed. (1) On a true construction the requirements imposed by section 18A of the Employment Tribunals Act 1996 did go to jurisdiction. Thus, a failure to comply with those requirements should lead to a claim being dismissed or struck out for want of jurisdiction. That construction was consistent both with the language of the statute and the statutory purpose. It followed that since the claimant had failed to comply with the early conciliation requirements in section 18A, the employment tribunal had had no jurisdiction to entertain her detriment claim under section 48 of the Employment Rights Act 1996 (paras 47, 71–72, 98, 99).
(2) Since section 18A(1) applied only to the original initiation of proceedings, and since an application to amend to introduce a fresh cause of action did not properly fall to be regarded as the institution of such proceedings, it would not be wrong in principle to grant an application to amend to allow a fresh claim to be brought following a failure to comply with the section 18A requirement, although the tribunal would not be obliged to grant permission to amend and would only do so if it believed that it was a proper exercise of its discretion to do so. Thus, in the present case it had been open to the employment tribunal to permit the claimant to amend so as to recommence her section 48 detriment claim and, in all the circumstances, it had been entitled to exercise its discretion to permit such an amendment (paras 84–89, 95–97, 98, 99).
Gus Baker and Jessica Franklin (instructed by Kilgannon & Partners LLP) for the respondents.
William Young and Chevan Ilangaratne (instructed directly through Advocate) for the claimant.