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

At paras. 37-38 Swift J acknowledges that his conclusion is contrary to the earlier decision of the EAT in Pryce v Baxterstorey Ltd [2022] EAT 61 and to what he considers to be an obiter dictum in a later passage in Bean LJ’s judgment in Clark approving the decision of the EAT in Cranwell v Cullen UKEATPAS/0046/14, but he observes that they are not binding and respectfully declines to follow them. On the assumption (which I consider below) that Bean LJ’s endorsement of Cranwell was indeed obiter, we are not bound by them either, but before considering whether they nevertheless have persuasive authority I should summarise what they say.

In Pryce a claimant had issued proceedings without having obtained an ECC, but she did so a few days later and sent it to the ET asking for the ECN to be added to the claim form. On that basis the claim was not rejected, but it emerged subsequently that she had had no ECC at the date of presentation of the complaint (so that this was a case of substantive non-compliance) and the claim was dismissed “for lack of jurisdiction”: it is not clear, but does not matter for present purposes, which (if any) rule was relied on. Her appeal to the EAT was (regretfully) dismissed by HH Judge Shanks. The detailed issues in the appeal do not concern us but the starting-point of the Judge’s analysis was that he accepted the submission of counsel for the respondent that “section 18A (8) is in the nature of a jurisdictional requirement which is laid down by an Act of Parliament” and that it followed that her original claim should have been rejected: see para. 10 of his judgment. It is fair to say that the claimant was unrepresented and it appears that there was no argument on the point.

In Cranwell the claimant had commenced proceedings to which the early conciliation provisions applied but had not invoked them. In her claim form she ticked the box stating that an exemption applied, but in fact it did not: that constituted a “substantive defect” under rule 12, and the claim was accordingly rejected. She appealed to the EAT. Her appeal was dismissed. Again, the particular issues are not material for our purposes, but the premise of Langstaff P’s reasoning throughout was that section 18A imposed a jurisdictional bar.

Clark was, as I have said, a case of evidential non-compliance: the claimants had ECCs at the date they presented their complaints and thus did not fall foul of section 18A (8). I have set out at para. 39 above Bean LJ’s reasons for holding that a non-compliant claim could not be belatedly rejected. Immediately following that passage, at para. 44 of his judgment, he says that it is “instructive to compare” three earlier EAT decisions. The first is Cranwell, as to which he says:

“In Cranwell v Cullen the claimant had not provided the prescribed information to ACAS before bringing her ET claim, and was not exempt from providing such information. Langstaff P, though expressing sympathy for the claimant, upheld the decision of an ET striking out the claim. I consider that he was right to do so. Since s 18A of the Employment Tribunals Act 1996 lays down that (unless an exemption applies) the claimant must provide the information before the claim is brought, the tribunal in Ms Cranwell’s case had no jurisdiction.”

The reference to the “striking out” of the claim in Cranwell is strictly inaccurate because it was in fact rejected under rule 12. But what matters is Bean LJ’s endorsement of the proposition that non-compliance with section 18A deprives the tribunal of jurisdiction.

Mr Young submitted that Swift J was right to find that Bean LJ’s endorsement of Cranwell was obiter because it did not form any part of the reasoning supporting the determination of the appeal: it was no more than an observation on a question which did not arise in Clark, and it was unclear whether there had been any argument on it. I think that must be correct, and it follows that none of these three authorities is binding on us. Nevertheless I believe that all three constitute persuasive authority in support of the Appellants’ case in as much as Judge Shanks, Langstaff P and Bean LJ all regarded it as natural to read the requirements imposed by section 18A as going to jurisdiction.

I should also mention the decision of this Court in Abercrombie v AGA Rangemaster Ltd [2013] EWCA Civ 1148, [2014] ICR 209. This was concerned with the dispute resolution regime under the 2002 Act referred to at para. 35 above. The primary provisions establishing that regime are in section 32 of the Act. For our purposes the key provisions can be summarised as follows: