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

The relevant part of the ET’s order reads:

“Joinder and Amendment

4.

The Fourth, Fifth and Sixth Respondents are joined as parties to the claim pursuant to Rule 34 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

5.

The Claimant is given permission to treat her ET1 presented to the Tribunal on 12 April 2023 as her amended ET1.

6.

The Respondents’ ET3s shall stand as their response to the Claimant’s claims.”

(Rule 34 of the Procedure Rules, referred to in para. 4, gives the ET the power to “add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings”.)

The intended effect of that Order, as confirmed by para. 44 of Judge Crosfill’s decision, is that the Claimant should be enabled to pursue the selfsame detriment claim against the Appellants that she had sought to make in her original complaint. It comprises both an order for joinder and a grant of permission to amend. An order for joinder was required as regards the individual Appellants, because the rejection of the detriment claim meant that they ceased to be parties to the complaint at all, but it was not required as regards the Abel companies because they were respondents to the unfair dismissal claim which was unaffected by the rejection. In the case of all the Appellants, amendment was also required in order to reinstate (in identical terms) the rejected detriment claim. In what follows, I will sometimes for convenience refer to both aspects of the order simply as the exercise of the power to amend.

Mr Airey argued that it was wrong for the ET to exercise its power to amend in order to reinstate a claim which had been rejected for failure to comply with the early conciliation requirements. Judge Crosfill did not accept that submission. He relied in particular on the decisions of the EAT in Science Warehouse Ltd v Mills [2015] UKEAT 224/15, [2016] ICR 252 and Drake International Systems Ltd v Blue Arrow Ltd [2016] UKEAT 282/15, [2016] ICR 445. These are central to the argument, and I should summarise them in a little detail.

In Science Warehouse the claimant had presented a complaint to the ET raising a claim of pregnancy discrimination. She had complied with section 18A and had given the ECN in her claim form. She subsequently applied to amend the complaint to add a complaint of victimisation which had arisen since the commencement of the proceedings and which could not therefore have been part of the “matter” about which ACAS had been informed. The respondent resisted the application on the basis that she had not invoked the early conciliation process in respect of that claim. The ET allowed the application and the EAT (HH Judge Eady QC sitting alone) upheld that decision. At paras. 24-27 of her judgment Judge Eady considered the scope of the word “matter” and held that it was not to be defined by reference to a particular claim. But at para. 28 she made the distinct point that section 18A (1) did not cover the case of an amendment. She said:

“Furthermore, section 18A does not purport to address the case of an existing Claimant, merely that of the prospective Claimant [italics in original].  For those who are existing Claimants, who seek to add additional claims to existing proceedings, this will be a matter for the ET, exercising its case management powers under Rule 29 of the ET Rules 2013 and applying the well known guidance laid down in cases such as Selkent v Moore.”

She continued, at paras. 29-31, to consider the relevance on such an application of the fact that amendment would avoid what would otherwise have been an obligation to invoke the early conciliation process. She said:

“29.

Does this approach undermine the objective of the early conciliation procedure, as [counsel for the respondent] suggests?  Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation?  [Counsel’s] fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the ET, properly exercising its judicial discretion.  An ET is not bound to permit such an application.  The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment.  If such an application to amend were not permitted, it may be that the Claimant becomes a prospective Claimant in respect of that matter, and there may then be an obligation to invoke the early conciliation procedure unless one of the section 18A(7) exceptions apply.  If the amendment is permitted, however, I cannot see that the early conciliation process arises.  It is simply a matter of case management.

30.

It seems to me that the most the Respondent can really say is that an ET considering whether or not to allow an amendment might consider the potential avoidance of early conciliation to be a relevant factor.  I do not see, however, that it can be determinative.  The rationale of the early conciliation scheme is to encourage the settlement of employment disputes before litigation has commenced and positions have become entrenched.  Apart from the initial obligation to contact ACAS, however, the process is entirely voluntary.  If the Claimant has no interest in participating in a conciliation process, she is not obliged to do so; the same is true of the Respondent.  Early conciliation builds into the ET process a structured opportunity for parties to take advantage of ACAS conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with ACAS and the issuing of an early conciliation certificate.  The initial requirement placed upon a prospective Claimant is, however, limited; it may even be by telephone.  In any event, she is only required to provide her own name and address and that of the prospective Respondent.  She is not required to state the nature of the claim she might subsequently bring, still less to label it under the relevant statutory provisions.  That information might emerge during the conciliation process, but there is no requirement that it does so, and normally the ensuing discussions will remain confidential in any event. 

31.

Given, then, the limited nature of the requirement and the way in which early conciliation operates as an opportunity rather than a more stringent obligation, was the ET bound to decline to allow an amendment to add an additional claim where that could not have been a subject of the original early conciliation process?  I do not consider that it was.  Had the subsequent claim been entirely unrelated to the existing proceedings - and I am not going to speculate on what that might have been - the ET might have declined to permit the amendment, but that decision would be informed by a variety of factors, not merely the fact that no early conciliation process could have been engaged in.”

In Drake the claimant presented a complaint under regulation 12 of the Transfer of Employment (Protection of Employment) Regulations 2006 naming the parent company of a group of wholly-owned subsidiaries as the respondent: he had obtained an ECC naming the parent company and had given the ECN from that certificate in his claim form. It subsequently emerged that the proper respondent was not the parent but one of the subsidiaries. The claimant applied for permission under rule 34 to substitute the subsidiary as a respondent. The respondent resisted the application on the basis that the claimant had not invoked the early conciliation process as against that company. The ET granted permission, and the EAT (Langstaff P sitting alone) upheld that decision. Langstaff P’s reasoning appears at paras. 17-34 of his judgment. He endorsed the approach of Judge Eady in Science Warehouse and held that it applied equally to the case of an application under rule 34. I should quote para. 26 of his judgment, which reads:

“Further and separately, the Act and Early Conciliation Regulations speak of a ‘prospective Claimant’ in relation to proceedings which have not yet been instituted.  It makes no sense to talk of a ‘prospective’ Claimant once relevant proceedings have been instituted.  Insofar as applications to substitute fresh Respondents to an existing claim is concerned, then if permission is refused, the applicant will be a prospective Claimant in relation to those Respondents: but at the time the application is made, that person is not, since ‘the matter’ is then subject to existing proceedings and will, subject only to the grant or refusal of amendment, either remain the subject of existing proceedings, or become the subject of proceedings yet to be instituted.”

At paras. 50-51 of his decision Judge Crosfill notes that in both Science Warehouse and Drake the claimant had in fact obtained an ECC whereas in the present case the Claimant had not invoked the early conciliation process at all; but he concludes that that is not a basis for distinguishing them.

At para. 52 of his decision Judge Crosfill considers the decision of the EAT decision in Webster v Rotala Ltd UKEAT/0015/20 (Upper Tribunal Judge Keith sitting alone). In that case the claimant had presented a complaint comprising (a) an unfair dismissal claim under section 103A of the ERA, including a claim for interim relief, and (b) another claim, which appears (though this is not quite clear) to have been a victimisation claim. He had not invoked the early conciliation process in respect of either claim and accordingly did not give an ECN on the claim form (or tick any of the boxes providing a reason). The ET rejected the entire claim. The EAT allowed his appeal on the basis that the interim relief exemption applied to the unfair dismissal claim so that only the non-exempt claim fell to be rejected. Judge Crosfill noted that Judge Keith had referred at one point in his judgment to the ET having being obliged to “dismiss” the other claim, which might have implied that the claim should have got through the gateway and then been the subject of a case management order; but he said that that was clearly just a loose paraphrase for “reject”.

Having reached that conclusion, Judge Crosfill considered whether as a matter of discretion he should make the order. He gave his reasons for doing so at paras. 63-73 of his decision. Paras. 63-66 read as follows:

“63.

Had the Employment Tribunal done what it ought to have done then the Claimant would have been sent a notice rejecting her claim and informing her of the reasons why parts of the claim could not be accepted. She would have been notified of her right to seek a reconsideration and/or told that she might represent her claim with the identified defects rectified. The claim would have been treated as having been presented at the date it was presented with the defects cured.

64.

The Claimant has acted for herself. She is intelligent and has done a very good job of identifying her claims in her original ET1. However, she would be at a considerable disadvantage in not being informed that only part of her claim should have been accepted. The point does not appear to have occurred to the Judge who vetted the claim form before indicating that it should be accepted. The point did not occur to me, and I did not recheck whether the claims should have been accepted in their entirety. Whilst Mr Airey must get credit for spotting the point he too did not do so at the early stages of the claim doing so only before me. If two judges failed to spot the point it is unsurprising that a litigant in person did not realise of her own volition that there were defects in her claim.

65.

Adding a claim under Sections 47B/48 to the claims of unfair dismissal is not in my view a significant amendment. The claims are more advantageous for the Claimant but arise out of or are closely connected to the facts already said to support the unfair dismissal claims. The Respondents have known that the Claimant wished to advance such claims from the point that they received her ET1. They have set out their responses in their ET3s.”

I need not set out the remaining paragraphs, which address the relevance of the fact that any fresh claim would have been out of time at the date of the hearing and whether allowing the clams to proceed would unfairly prejudice the Appellants.