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

The relevant provision for our purposes is section 18A, which was inserted by the Enterprise and Regulatory Reform Act 2013. (It has been amended in minor respects by the Judicial Review and Courts Act 2022 with effect from 25 April 2024, but we are concerned with its original form.) It is headed “Requirement to contact ACAS before instituting proceedings”. The parts which are relevant for our purposes read as follows:

“(1)

Before a person (‘the prospective claimant’) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

This is subject to subsection (7). (Footnote: ¹)

(2)

On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.

(3)

The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.

(4)

If—

(a)

during the prescribed period the conciliation officer concludes that a settlement is not possible, or

(b)

the prescribed period expires without a settlement having been reached,

the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.

(5)-(6) …

(7)

A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases. The cases that may be prescribed include (in particular) —

cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter;

cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;

cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.

(8)

A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).

(9)

…

(10)

In subsections (1) to (7) ‘prescribed’ means prescribed in employment tribunal procedure regulations.

(11)

The Secretary of State may by employment tribunal procedure regulations make such further provision as appears to the Secretary of State to be necessary or expedient with respect to the conciliation process provided for by subsections (1) to (8).

(12)

…”

Since I will be referring to this section very frequently in this judgment I will do so simply as “section 18A” without specifying the statute.

The term “relevant proceedings” in subsection (1) is defined in section 18 (1) of the ETA as meaning ET proceedings “under” specified provisions of no fewer than thirty different statutes and statutory instruments. The provisions in question are generally those which confer jurisdiction on the ET to determine claims of a particular kind, though in the case of detriment claims the reference is simply to “[proceedings] under Part 5 of [the ERA]”, being the part which covers both section 47B and section 48. I should note, for reasons that will become apparent, that not all of those provisions confer jurisdiction on the ET by use of the formula that a person “may present a complaint” which appears in section 48 (3). Most do, but I am aware of at least three exceptions (Footnote: ²), and there may be others.

The key provisions of section 18A for our purposes are subsections (1) and (8). The two are complementary. Subsection (1) imposes a requirement on the prospective claimant to provide ACAS with the specified information: I will as a shorthand refer to this as the claimant “invoking” the process (although, as appears below, they are in fact under no obligation to engage in it). Subsection (8) prohibits him or her from commencing proceedings “without a certificate under subsection (4)” (an “ECC”): the ECC is evidence not only that the requirement in subsection (1) has been complied with but also that the process has run its course, either by the expiry of the prescribed period or because ACAS has decided that settlement is not possible.