CA-2025-000379 - [2025] EWCA Civ 1357

At para. 35 Swift J considers the position where, as here, the non-compliance has only been detected once the claim has passed the gateway and substantive tribunal proceedings have begun. He says:

“Once that moment has passed, once the Form ET1 has been sent to the respondent, or when the respondent has filed its defence, it makes much less sense, if any sense at all, to construe the effect of subsection (8) as removing the competence of the Employment Tribunal to decide the substantive claim.  It is not obvious at all that the purposed by [sic] section 18A of the ETA 1996 and the 2014 Regulations would be served by a conclusion that proceedings should be treated as a nullity, requiring a claimant who wished to pursue the claim to start again after having gone through early conciliation, now facing the additional hurdle that the second claim would, like as not, have been commenced out of time (a point that would, no doubt, also be obvious to the respondent and would make the respondent less willing to engage with any form of conciliation).  The only effect of an approach that required the Employment Tribunal to dismiss or strike out a claim as a matter of course would be punitive.  The early conciliation procedures as enacted in section 18A and the schedule to the 2014 Regulations are not of that nature, and I do not consider such a conclusion is required by the language of section 18A(8). The statutory provisions as enacted, and the purpose that lies behind them, are better served by an approach that in such circumstances, allows the Employment Tribunal to consider whether to exercise its powers under rule 37 and/or rule 6 taking account all relevant circumstances.”

My primary response to this paragraph is that even if the consequences of treating the requirements of section 18A as going to jurisdiction were as stated that would not be inconsistent with the statutory purpose. That purpose is, as I have said, to reduce unnecessary resort to the ET by providing an opportunity for ACAS conciliation before proceedings are commenced; and, as I have also said, it is positively conducive to that purpose to enact that the ET shall not have jurisdiction to entertain any claim where that opportunity has not been provided. Swift J’s point is that that purpose is very unlikely to be achieved in some particular circumstances. But in the case of any general rule it is likely to be the case that not every instance of its application will serve the statutory purpose: that does not mean that the rule overall is inconsistent with that purpose.

However, that may not address the substance of Swift J’s point. I accept that if the position were that the rule would only create a realistic opportunity for conciliation in a few cases it might be hard to accept that Parliament intended it to create an absolute bar. But that is not the case here. Swift J’s concern relates only to cases like the present where the fact that a claim is non-compliant is only picked up after it has passed the gateway stage. Such cases will necessarily be exceptional. And even where they occur it will not necessarily be futile, from the point of view of achieving early conciliation, for the claimant to be required to re-present their claim. They would have had to do so if the claim had been rejected at the gateway stage, and there is no reason to suppose that the prospects of their, or the respondent, being interested in conciliation would be affected by the passage of time between the (erroneous) acceptance of the claim and the point at which the error is detected (which may only be a matter of days or weeks later).

Swift J makes the separate point that the longer the interval before the non-compliance is detected the greater the risk that the claim will be out of time. It is impossible to assess the extent of that risk. The limitation provisions applicable to the “relevant proceedings” to which section 18A applies are not all the same and vary not only in the length of the limitation period but in the scope for discretionary extension. But even if some cases of non-compliance will indeed not be detected until it is too late to start fresh proceedings I do not believe that that consequence justifies adopting what I believe is an unnatural construction of the section. I repeat that such cases will be few, because non-compliance will normally be picked up at the gateway stage. It is also important to remember that we are concerned with cases of substantive non-compliance, where the conciliation process has not been invoked at all: where the non-compliance consists only of the accidental omission or inaccurate recording of the ECN (as in Clark) there is no jurisdictional bar and the matter will be dealt with as a matter of case management. No doubt there will be cases where the claimant’s failure is venial, and the operation of an absolute bar will accordingly be harsh; but the fact remains that it is the result of a failure by the claimant to invoke a process which Parliament regarded as mandatory. None of those consequences are of a kind that could justify the conclusion that it cannot have been intended that the requirements of section 18A should go to jurisdiction.