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

Paras. 31-32 contain what I understand to be Swift J’s core reasons for his construction of section 18A. They read:

“31.

Properly construed, section 18A does not provide any such absolute bar.  The relevant provisions are section 18A(1) and (8). Subsection (1) imposes an obligation on the prospective claimant to provide information to ACAS.  The nature of that obligation, taken together with the provisions in the Schedule to the 2014 Regulations is as described by Langstaff P in Drake International and HHJ Eady QC in Science Warehouse: see above at paragraph 4 [quoted at para. 34 above]. It is, at its highest, an obligation on a prospective claimant to consider whether to take advantage of ACAS conciliation.  This, in the words of Langstaff P is a matter ‘led by the wishes of the prospective claimant’.   It is inherently improbable that non-compliance with an obligation of this nature should affect the competence of the Employment Tribunal to hear a claim that, in all other respects, has been properly presented to it. 

32.

Consideration of subsection (8) does not alter the position.  There is nothing on the face of this subsection that requires the conclusion that it is intended to affect the Employment Tribunal’s competence to determine a claim. The prohibition against presenting a claim is directed to the prospective claimant. Subsection (8) says nothing as to the Employment Tribunal’s competence to act if a claim is received.”

There are two elements in that reasoning, which I take in turn.

The first element focuses on the operative words of the statute. Swift J’s point is that both subsection (1) and subsection (8) impose obligations on the (prospective) claimant as a condition of bringing proceedings: they say nothing about the powers of thetribunal. Mr Young made the same point, but he developed it by drawing attention to the fact that the relevant limitation provision, section 48 (3) of the ERA, uses precisely the kind of express prohibition directed to the tribunal which section 18A eschews – “the tribunal shall not consider”. He pointed out that it is well-established that the effect of that formula is to create a jurisdictional bar. He referred us to para. 16 of the judgment of Elias LJ in Radakovits v Abbey National plc [2009] EWCA Civ 1346, [2010] IRLR 307, which reads:

“There is plenty of authority which confirms that time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver: see …Dedman v British Building & Engineering Appliances [1973] IRLR 379. … In Dedman, Lord Denning pointed out that even if an employer actively wishes to have the case heard by a tribunal, the tribunal still cannot hear it if it does not have jurisdiction. The reason is that the language of section 111(2) of the Employment Rights Act (as with its statutory predecessors) provides in terms that a tribunal ‘shall not consider’ a claim of unfair dismissal unless it is lodged in time. That is what makes these issues jurisdictional rather than mere limitation issues.”

He submitted that if it had been intended that section 18A should impose a jurisdictional bar, that is the formula that would have been used.

I am unpersuaded by this. In my view Swift J’s focus on the fact that subsections (1) and (8) only explicitly place obligations on the claimant is over-literal. I believe that if the statute prohibits the claimant from presenting a claim the natural consequence is that the tribunal is likewise precluded from entertaining it: the one is the corollary of the other. There is not much that I can say by way of amplification of that view, but I draw support from the fact it reflects the understanding also of the judges in the various authorities to which I refer below. Mr Baker advanced a supporting argument that the phrase “may not present” in subsection (8) must be intended to correspond with the phrase “may present” which is used in the ERA (read with section 2 of the ETA) to confer jurisdiction. There is force in that point, but I cannot attach decisive weight to it because not all the provisions listed in the definition of “relevant proceedings” in section 18 (1) of the ETA use the “may present” formula: see para. 18 above.

Mr Young’s point based on the contrast between the language of section 18A and section 48 (3) of the ERA has given me some pause. But I do not think that it can outweigh what I believe to be the natural meaning of the words used in section 18A. I do not believe that drafting practice in this field is sufficiently consistent to place real weight on comparing and contrasting the language of different provisions. I have already referred to the fact that the early conciliation provisions apply to a much wider range of jurisdictions than those arising under the ERA. But, even confining ourselves to a comparison with the ERA, limitation and early conciliation are different kinds of statutory condition, with different drafting histories: the ERA consolidates provisions going back to the early days of the employment legislation, whereas the early conciliation provisions represent a distinct statutory scheme introduced for the first time by the 2013 Act.

The second element is what is said to be the improbability of Parliament intending that non-compliance with obligations of the very limited character imposed by section 18A should have the consequence of depriving the tribunal of jurisdiction (or, in Swift J’s preferred terminology, “competence”) altogether. As Mr Young put it, the expected consequence of non-compliance with a personal obligation or prohibition of this kind would be a case management sanction appropriate to the circumstances of the particular case.

I am not persuaded by that point either. The early conciliation provisions were introduced by the 2013 Act because Parliament believed that it was important that ET proceedings should not be commenced unnecessarily – more specifically, until there had been an opportunity for ACAS conciliation. It is not only consistent with, but positively conducive to, that purpose that the tribunal should not be empowered to entertain a claim unless and until that opportunity has been afforded. The fact that there is no obligation on the parties to take advantage of the opportunity is irrelevant: what is important is that the horse is brought to water, even if it cannot be made to drink.