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

In order to identify the issues raised by the appeal it is necessary to take rather a long run-up.

The starting-point is that the Claimant did not prior to presenting the claim form invoke the early conciliation process at all, with the consequence that no ECC was ever issued: this is thus a case of substantive non-compliance. In the claim form she answered the question whether she had an ECN by ticking the “no” box. She did not tick any of the boxes giving an explanation; but even if she had done so her only valid explanation – namely that she fell within the interim relief exemption – only applied to the unfair dismissal claim.

The failure to give an ECN meant, as Judge Crosfill correctly held, that the detriment claim should have been rejected under rule 10 (1) (c). That did not occur. We do not know why. The most likely explanation would seem to be that the member of the tribunal staff checking the claim form saw that it included an application for interim relief but failed to appreciate that the interim relief exemption did not apply to the detriment claim. But that is speculation; all that can be said with certainty is that there was an error by the tribunal staff. In any event Judge Crosfill believed that the correct course was to remedy that failure by himself rejecting the detriment claim under rule 12 (the precise head under paragraph (1) was not specified, but the relevant one would appear to be (c)).

A similar, but not identical, situation arose in Sainsbury’s Supermarkets Ltd v Clark[2023] EWCA Civ 386, [2023] ICR 1169. In that case the claim forms in related equal pay proceedings each covered multiple claimants. Unlike in the present case, ECCs had in fact been issued in respect of all the claimants, but the forms omitted some of the relevant ECNs and offered no explanation for the omissions: thus, applying the distinction at para. 28 (1) above, this was a case of evidential and not substantive non-compliance. That non-compliance was overlooked by the tribunal staff, and the relevant claims were accordingly not rejected at the gateway stage. When the omission was subsequently raised by the respondent at a case management hearing, the ET, as in the present case, purported belatedly to reject the claim. The EAT allowed the claimants’ appeal. This Court upheld its decision (though for a different reason). The leading judgment was given by Bean LJ, with whom Asplin and Nugee LJJ agreed. In short, he held that once a claim has passed through the initial gateway presented by rules 8-13 it must be treated as a formally valid claim and cannot be retrospectively rejected; any consequences of the non-compliance would fall to be dealt with under the case management powers identified at paras. 31-33 above. His full reasoning appears at paras. 36-43 of his judgment, but I need only quote para. 42, which reads:

“42.

If the tribunal staff reject a claim under Rule 10 or an employment judge rejects it under Rule 12, the claimant may seek reconsideration on the basis that either the decision to reject was wrong or the notified defect can be rectified: see Rule 13(1). But if no such rejection occurs it is not in my view open to a respondent to argue at a later stage that the claim should have been rejected [my italics, Bean LJ’s underlining]. The respondent’s remedy is to raise any points about non-compliance with the Rules in their form ET3, or in appropriate cases at a later stage, and to seek dismissal of the claim under Rule 27 or apply for it to be struck out under Rule 37.”

(The point which I have italicised is made again in para. 51 of the judgment.) I should add that no application under rule 27 or rule 37 was before the Court in Clark and the question whether it would have succeeded was not directly in issue: however, there are clear indications that Bean LJ thought that an error of the kind that had occurred in that case could be waived.

Unfortunately Judge Crosfill was not referred to Clark (which, it is fair to say, had only very recently been decided): if he had been it would have been clear that it was not open to him to take the course that he did. However its potential relevance was identified by HH Judge Auerbach in his reasons for allowing the appeal to proceed to a full hearing in the EAT.

At the hearing of the appeal Swift J, relying on Clark, set aside the ET’s notice of rejection; and, as he made clear in his eventual judgment (see para. 41), he regarded himself as bound also to set aside the grant of permission to amend which he regarded as dependent on it (Footnote: ⁴). However, in reliance on the final sentence of para. 42 of Bean LJ’s judgment, he allowed the Appellants to apply for the claim to be dismissed under rule 27 or struck out under rule 37. He said that he would determine that application himself in the exercise of his power under section 35 of the ETA (which permits the EAT to make any order that the ET could have made).

In support of that application Mr Baker argued that the effect of section 18A (1) and (8) was that the Claimant’s failure to invoke the early conciliation procedure deprived the ET of jurisdiction to consider the claim, with the result that it was bound to dismiss it.

Swift J rejected that argument and dismissed the Appellants’ application. It followed that the detriment claim remained live. That outcome was recorded in the EAT’s formal Order simply as the dismissal of the Appellants’ appeal: it does not purport to set aside the ET’s order giving permission for joinder and amendment. It is doubtful whether that accurately reflects the different route followed by Swift J. Nothing of substance turns on that, but it has a formal effect on the nature of the Respondent’s Notice: see para. 46 below.

There is a single ground of appeal against the EAT’s decision, which reads:

“Swift J was wrong to conclude that the Claimant’s failure to comply with section 18A (1) of the Employment Tribunals Act 1996 did not deprive the Employment Tribunal of jurisdiction to hear the Claimant’s claims brought under section 48 of the Employment Rights Act 1996.”

That refers only to subsection (1) of section 18A, but before us Mr Baker without objection relied also on subsection (8) (as he had below): where it is unnecessary to distinguish between the two subsections, I will refer simply to “section 18A”.

The upshot of all that is that the only issue raised by the appeal is whether the effect of section 18A is that the Claimant’s failure to invoke the early conciliation process, and thus her failure to give an ECN in her claim form, meant that the ET (or, strictly, the EAT exercising the powers of the ET) was obliged to dismiss the detriment claims for want of jurisdiction.

As already noted, the Claimant by her Respondents’ Notice seeks in the alternative to rely on the ET’s original reasons, so that if the detriment claim falls to be dismissed or struck out it can be reinstated by amendment. In substance, though not in form because of the way that the EAT’s formal Order is drafted (see para. 43 above), this raises a cross-appeal, because it seeks to challenge Swift J’s decision to set aside the grant of permission to amend, and I will so describe it.