Compass Group UK & Ireland Ltd v Morgan (Practice and Procedure: Preliminary issues) [2016] UKEAT 0060_16

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Compass Group UK & Ireland Ltd v Morgan (Practice and Procedure: Preliminary issues) [2016] UKEAT 0060_16_2607 (26 July 2016) URL: http://www.bailii.org/uk/cases/UKEAT/2016/0060_16_2607.html Cite as: [2016] UKEAT 0060_16_2607, [2016] IRLR 924, [2017] ICR 73, [2016] UKEAT 60_16_2607

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

1. This appeal raises an important question of procedure in relation to the early conciliation (“EC”) provisions introduced by Part II, section 7 of the Enterprise and Regulatory Reform Act 2013 (“ERRA”) namely whether an EC certificate obtained by a prospective Claimant can cover future events. By a Judgment promulgated with Reasons on 14 December 2015 Employment Judge Hyde held that it could. Moreover, on the facts of the present case, although the Claimant’s resignation underlying her constructive unfair dismissal complaint occurred after the EC certificate was issued, the proceedings related to a sequence of events that were in issue between the parties at the time of the EC process, and accordingly she held that the Claimant satisfied the EC requirements in relation to the constructive dismissal complaint. Compass Group UK & Ireland Ltd appeal that decision as in error of law.

2. We refer to the parties as they were below. Mr Christopher Milsom of counsel appears on behalf of the Respondent and Mr Nigel Moore of counsel on behalf of the Claimant. We have been assisted by helpful, focused and cogent submissions from both counsel, for which we are grateful. This is the unanimous Judgment of the three of us, and all three of us have contributed to it.

3. It is helpful at the outset to identify the legal framework. The ERRA 2013 inserted section 18A into the Employment Tribunals Act 1996 (“ETA”). This provides:

“18A. Requirement to contact ACAS before instituting proceedings

(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).

(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) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period.

(6) In subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.

(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) Where a conciliation officer acts under this section in a case where the prospective claimant has ceased to be employed by the employer and the proposed proceedings are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular -

(a) seek to promote the reinstatement or re-engagement of the prospective claimant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or

(b) where the prospective claimant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the prospective claimant.

(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) Employment tribunal procedure regulations may (in particular) make provision -

(a) authorising the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4);

(b) requiring ACAS to give a person any necessary assistance to comply with the requirement in subsection (1);

(d) treating the requirement in subsection (1) as complied with, for the purposes of any provision extending the time limit for instituting relevant proceedings, by a person who is relieved of that requirement by virtue of subsection (7)(a).”

4. There are duties imposed on ACAS in relation to conciliation before institution of proceedings in the circumstances described by section 18B; including a power to seek to promote reinstatement or re-engagement of the prospective claimant in identical terms to that which arises under section 18A(9). Section 18C deals with conciliation after institution of proceedings. Under this section either party to proceedings can request the conciliation officer to endeavour to promote a settlement, and in a case where employment has ceased the conciliation officer may take the same steps that are identified in section 18A(9) under section 18C(2). The scheme of the legislation, accordingly, is to impose a mandatory requirement on a prospective claimant before issuing relevant proceedings, a defined term, to contact ACAS and provide ACAS with certain basic information to enable ACAS to explore the possibility of conciliation. Relevant proceedings are those listed in the ETA 1996 section 18(1) as amended.

5. Apart from the initial obligation to contact ACAS, EC is, however, a voluntary process. There is no duty on either party to participate or to continue to participate in the process. If either party does not wish to do so, and in particular if the claimant does not wish to do so, ACAS issues an EC certificate to the prospective claimant showing that compliance has been made with the duty under section 18A(1). Subject to section 18A(7), the certificate generally enables the prospective claimant to issue proceedings relating to any matter that is a matter about which the prospective claimant has provided prescribed information in the prescribed manner to ACAS.

6. The power to make regulations provided by section 18A(11) has been exercised by the Secretary of State. The regulations are the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014. In a Schedule to those Regulations there are Rules of Procedure. Rule 1 provides that a prospective claimant must present a completed EC form to ACAS in accordance with Rule 2 or telephone ACAS in accordance with Rule 4. Rule 2 defines the prescribed information that must be provided by a prospective claimant to ACAS. This is limited to names and addresses of both prospective claimant and prospective respondent (see Rule 2(2)). If the necessary information is not contained in an EC form - whether sent by post or electronically - the form may be rejected by ACAS, or, alternatively, ACAS may contact the prospective claimant to provide the missing information (see Rule 2(3)). Where a prospective claimant does not consent to the EC officer contacting the prospective respondent, the officer must conclude that settlement is not possible and proceed then to issue a certificate. Once the prospective claimant has contacted ACAS and provided the prescribed information, ACAS sends the prescribed information to an EC officer (see section 18A(2)). The conciliation officer is required during a prescribed period to try to promote a settlement between the parties to the proceedings, but if the officer concludes that a settlement is not possible or the prescribed period expires without a settlement having been reached, the officer is required to issue a certificate to that effect to the prospective claimant. Attempts to promote a settlement may of course continue after the expiry of the prescribed period (see section 18A(5)).

7. The EC provisions have been considered in two recent cases by this Appeal Tribunal. Neither side contends that either decision is determinative of the issues with which we are obliged to grapple, but nevertheless some important observations were made in those cases about the nature and purpose of the EC provisions, as both parties have recognised. In Science Warehouse Ltd v Mills [2016] ICR 252 the claimant was permitted to amend an existing discrimination claim to include a claim of victimisation in respect of allegations of disciplinary misconduct the respondent said would have been pursued against her had she not resigned. In that case, a Tribunal permitted the amendment, recognising the requirement for an EC certificate but holding that such a certificate is not a prerequisite of an amendment application. The decision was challenged unsuccessfully by the respondent on the basis that the amendment sought to add an entirely new claim that post-dated the ET1, and accordingly the claimant was required to go back and invoke the EC procedure again.

8. HHJ Eady QC referred to the broad terminology in the EC scheme of “matter” rather than “cause of action or claim” and held that the EC Rules of Procedure did not provide for the formal setting out of each cause of action for each claim separately. Its adoption of the expressions “any matter” and “that matter” was of concepts that were, in her view, broad. Moreover, she emphasised that although it is mandatory to notify ACAS that a Tribunal claim may be brought, the role of ACAS is simply to offer to attempt to resolve any dispute at an early stage and no more. Either party may decline, and there is no obligation whatever on the parties to engage with EC through ACAS. These considerations led her to conclude that the application to amend was a matter for the Employment Tribunal’s case management discretion, which had been appropriately exercised in the circumstances.

9. In Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445 Langstaff J reached similar conclusions, holding that the word “matter” in section 18A(1) was capable of broad application. Different times, dates and different people all might be sufficiently linked to come within its scope. He concluded that the applicable principle was that a matter should not be brought to litigation without consideration of EC being formally certified but that there was no obligation to engage in such conciliation. Both he and HHJ Eady QC expressed the view that it was part of Parliament’s intention in enacting the EC scheme and in adopting the broad terminology referred to that the Rules of Procedure would operate in a flexible and pragmatic way, avoiding the sort of disputes and satellite litigation that was spawned by the dispute resolution procedures enacted under the Employment Act 2002.

Factual background

10. Against that background we turn to consider the facts. These are yet to be determined, and nothing that we say should be construed as making any finding of fact. The Claimant was employed by Sodexo Services Group Ltd with effect from 29 September 2008. She was transferred pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 to the Respondent. Her case is that she has an acute anxiety disorder and this was made known to the Respondent. She alleges that in September 2014 she was instructed to work at an alternative location and in a less senior capacity. She submitted a grievance on 13 October 2014 complaining about these matters. She instructed solicitors in November 2014, and there is no dispute that they acted for her at all material stages thereafter. On 14 November 2014 she entered into EC, albeit by reference then to the wrong legal entity, though that was corrected on 20 November 2014. A certificate of completion of the EC process (referred to as the EC certificate) was issued on 3 January 2015. Two months later, on 18 March 2015, the Claimant resigned from her employment. She lodged an ET1 on 20 March 2015 alleging, among other things, an unlawful failure to make reasonable adjustments and constructive unfair dismissal.

11. The Respondent’s ET3, presented on 22 April 2015, relied on a jurisdictional bar by virtue of section 18A ETA 1996 as regards the complaint of constructive unfair dismissal. The Respondent submitted that the constructive dismissal claim was not properly instituted because the requirement to undergo EC had not and could not have been fulfilled since dismissal had not yet occurred at the time of conciliation. That meant that it should have been treated as having not been presented at all. It argued that a chronological approach to the construction of the EC legislation and in particular section 18A(1) should be taken in the sense that prospective claimants ought not to be able to raise in their claim forms any cause of action that had not accrued at the date of notification to ACAS. Any cause of action occurring after the date of notification to ACAS, even where it relates to facts occurring during the EC process itself, was said not legitimately to be capable of being pursued without first notifying ACAS about it.

12. That jurisdiction question was determined at a Preliminary Hearing against the Respondent and in favour of the Claimant in the Judgment of Employment Judge Hyde that is challenged on this appeal. Having set out at length the submissions made by the parties, the Judge accepted the Claimant’s submissions on this issue, and at paragraphs 67 to 74 she set out her reasons for doing so. We do not repeat those here.

The appeal

13. There is one ground of appeal advanced by Mr Milsom. The Respondent’s position, he accepts, has shifted from that which was adopted before the Tribunal. Mr Milsom now argues that the cut-off date beyond which the EC certificate does not normally extend is the issue of the EC certificate rather than the date of notification to ACAS. On behalf of the Claimant, Mr Moore contends, on the other hand, that there is no cut-off at all and that in any case it is a question of fact to be determined by a tribunal if necessary, whether proceedings are related to matters in existence when the EC process took place.

14. Central to Mr Milsom’s challenge are two arguments. First, the legislation is to be construed so as to implement rather than defeat its purpose, which is to facilitate early resolution of disputes. He relies on the explanatory notes that set the scene and provide context for these provisions and demonstrate, he submits, that Parliament intended the provisions to facilitate disputes without the need for litigation. He contends that a proper assessment of the operation of the EC legislation demonstrates that the EC process and certificate can only apply in relation to events and allegations that pre-date it. To find otherwise would enable claimants to bring claims about which EC would not necessarily have been conducted. That would defeat the objective of the process, and accordingly an EC certificate cannot, he submits, cover future events. Secondly, he submits that this is a bright line that creates consistency and certainty, which is consistent with a pragmatic and simple EC scheme.

15. Turning to section 18A(1) itself, he submits that the words “in relation to” are ambiguous because they carry two possible meanings: first, the meaning for which he contends, namely “concerning or about”; secondly, the meaning for which the Claimant contends, namely “connected with”. The latter, he submits, is looser and inconsistent with the purpose of the EC scheme. So far as the word “matter” is concerned, he contends that since EC must be conducted in relation to a matter before relevant proceedings are commenced, “matter” must refer to facts or events, whether actual or alleged, but is limited to those which exist or have occurred by the time of commencement of the EC process. His focus on chronology is said to have the benefit of “knowability” and certainty by avoiding the potential threat to privilege that would follow if the certificate was said to cover potential, anticipated events by being capable of objective proof and because the dates would then speak for themselves. In writing, Mr Milsom submitted that an EC certificate cannot and does not cover matters that are subsequent to the date of its issue. If there is a matter that is subsequent, further conciliation is required.

16. Mr Milsom’s bright line approach shifted in the course of argument. He accepts today that if proceedings are issued relating to a matter that was in contemplation at the time of conciliation, even if it had not occurred, that could be encompassed by an earlier EC certificate. He gave an example of a series of deductions from pay and accepted that deductions on either side of the so-called guillotine of the EC certificate issue date could be pursued in subsequent proceedings as covered by that earlier EC certificate. In his submission, provided the character of the conduct is the same and has an element of repetition about it, it could be covered. He submits, however, that dismissal is obviously a matter that is different in kind and cannot conceivably be part of the subject matter of EC certificated proceedings where it takes place after a certificate is issued. He relies for support for this submission on section 18A(9) and the power of a conciliation officer to attempt to promote reinstatement or re-engagement of an individual. He submits this differentiates a situation in which dismissal results and a situation in which the employment relationship is ongoing. He recognises, realistically, that this may result in a factual examination of the character of the conduct to determine whether it is the same or sufficiently the same and whether it has a sufficient element of repetition about it, and accepts that neither his nor Mr Moore’s construction of these provisions is ideal. He submits that his construction, however, has the merit of avoiding factual disputes and lends certainty to the process consistent with achieving its purpose.

17. Having considered carefully the submissions advanced by Mr Milsom, we have come to the conclusion that we prefer the arguments advanced by Mr Moore to those of Mr Milsom, clearly and cogently though Mr Milsom has expressed them. We recognise that there appears to be an inconsistency between the explanatory notes and the EC provisions themselves and suspect that the explanatory notes may have contemplated a more complex scheme than the one that has emerged and been approved by Parliament. We accept that the explanatory notes set the contextual scene, but that is all. They do not reflect, and we do not treat them as reflecting, the will of Parliament. That must be identified by the words enacted in the relevant provisions themselves.

18. We, like the Appeal Tribunal in the Science and Drake cases, consider it significant that Parliament used the word “matter” in section 18A(1) rather than “cause of action” or “claim” and that the prescribed information required to be provided by a prospective claimant to ACAS to fulfil the obligations under the scheme is so very limited. The word “matter” is broad and, as Langstaff J observed, may encompass not just the precise facts of a claim that bring it within a cause of action but also other events at different times and/or dates and/or involving different people. There is no obligation, as we have already indicated, when notifying ACAS to identify the matter itself nor the nature of any actual or prospective dispute, still less to provide the factual details or any background to that dispute. The only information required to be provided by a prospective claimant consists of names and addresses of the prospective parties.

19. It is also significant, in our judgment, that the process of conciliation is an entirely voluntary and confidential one. Once the prospective claimant has provided ACAS with the prescribed information, there is no requirement whatever for him or her to identify to ACAS, or indeed the prospective respondent, the subject matter or issues in dispute and no obligation whatever to enter into any discussions, still less meaningful ones, with the prospective respondent. Although it is hoped that this will follow, there is no obligation to do so. The prescribed information need not even be complete and correct. What the process does (as HHJ Eady QC explained) is to build in a structured opportunity for parties to take advantage of ACAS conciliation if they choose to do so before a matter reaches litigation.

20. Against that background, the question of construction raised by Mr Milsom is whether there is any temporal or other limit on the applicability of an EC certificate in the context of “relevant proceedings relating to any matter” that are commenced in relation to a cause of action that only crystallises after the EC process is complete. The question, accordingly, is: what is meant by “relating to any matter”? In our judgment, these are ordinary English words that have their ordinary meaning. Parliament has deliberately used flexible language capable of a broad meaning both by reference to the necessary link between the proceedings and the matter and by reference to the word “matter” itself. We do not consider it useful to provide synonyms for the words used by Parliament. Provided that there are or were matters between the parties whose names and addresses were notified in the prescribed manner and they are related to the proceedings instituted, that is sufficient to fulfil the requirements of section 18A(1).

21. Section 18A could have been enacted so as to require the matters complained of in subsequent proceedings to pre-date any relevant EC certificate, but Parliament chose not to do so. Equally, Parliament could have provided for a time limit on the validity of an EC certificate but did not do that either. Nor does the legislation provide that an EC certificate cannot pre-date causes of action complained about subsequently as, again, Parliament could have done. Indeed, there is nothing express in the legislation that provides any temporal or other limitation on the use of an EC certificate in relation to relevant proceedings, causes of actions or claims. Rather, the legislation is, as we have said, deliberately defined by reference to a broader term than “cause of action” or “claim”. We see nothing in the operation of the legislation that requires or entails a conclusion that the process and certificate only apply to events and allegations pre-dating the commencement of the process or the issue of the certificate or that requires any matter to be defined by reference only to the actual or alleged state of affairs or facts as at the date when EC commenced or the certificate is issued. We do not regard the fact that claimants might bring claims about which EC has not been conducted as significant in circumstances where there is no obligation to undertake any EC at all and certainly no obligation to undertake EC in relation to any particular claim. The only obligation on the prospective claimant is to obtain formal recognition that ACAS has been relevantly notified before any proceedings are instituted, and the fact that the prospective respondent has no right to engage in pre-claim conciliation at all and any contact with the prospective respondent is entirely conditional upon the claimant’s consent is consistent with this view.

22. The Respondent’s shifting case, which now accepts that if a matter is in contemplation but has not occurred prior to the issue of the certificate it can be encompassed within the EC certificate provided it does not result in dismissal, has no underlying logic to it, in our judgment, and does not obviously emerge from the legislation itself. We do not consider that there is a difference in kind between a cause of action involving dismissal and other causes of action that do not result in dismissal and agree with Mr Moore that this is a red herring. In practice, it is easy to imagine a situation in which an individual contacts ACAS complaining about a poor relationship that is deteriorating or developing in a particular and unacceptable way. The individual might have in his or her contemplation a belief that he is about to be dismissed, or that possibility might not yet have registered. Circumstances might exist where an individual’s relationship with his or her employer is breaking down but has not reached the point at which he or she feels bound to resign. We cannot see why it makes all the difference in such a situation that the relationship has come to an end. In either case (whether a case involving continuing employment or one involving a resignation) the underlying deteriorating employment relationship based on bullying, discrimination, victimisation or whatever other cause can constitute matters between the parties whose names have been notified to ACAS, and the fact of employment subsequently terminating is simply an additional factual matter that either is or is not related to those earlier matters.

23. Moreover, the fact that there is an ongoing power in the EC officer to endeavour to promote the reinstatement or re-engagement of a complainant by the employer in section 18C(2) means that no safe conclusion that there is a temporal limit on EC certificates can be drawn based on the mere existence of that power in section 18A(9). Ultimately, we can see no reason artificially to restrict the scope of the phrase “relating to any matter”. That does not mean that an EC certificate affords a prospective claimant a free pass to bring proceedings about any unrelated matter; it does not. In our judgment, it will be a question of fact and degree in every case where there is a challenge (and we hope and anticipate that there will be very few such challenges) to be determined by the good common sense of tribunals whether proceedings instituted by an individual are proceedings relating to any matter in respect of which the individual has provided the requisite information to ACAS. In circumstances where the only requirement is to make contact with ACAS but do nothing more and the information required to be provided is limited as it is, we do not consider that this construction defeats the object of the EC process at all.

24. Mr Milsom’s objection that this will require a factual investigation with the potential to involve EC officers giving evidence about what was and was not complained about is no real objection at all in circumstances where his own construction carries with it that possibility in any event. In our view, his forecast of EC officers up and down the country giving evidence in such cases is more imagined than real. Save in the most exceptional case, we see no need for EC officers to give evidence at all and agree that this would be undesirable. Here, as this Tribunal’s Judgment demonstrates, the Employment Judge had no difficulty in determining the facts by reference to witness statements without cross-examination at all and was able to reach a conclusion as to whether the proceedings related to relevant matters or not within the meaning of section 18A(1).

25. Moreover, we envisage that the fact of certification will in most cases be sufficient to demonstrate compliance with section 18A(1). In most cases, the parties will know what facts or matters were in issue between them. Respondents will need some good and compelling basis for challenging fulfilment with the section 18A(1) requirement. Where such a challenge is made, it will be for a tribunal to determine these questions of fact and degree. That these are questions of fact and degree makes it less likely, in our collective view based on past experience, that satellite litigation of this kind will arise than would be the case were a bright line construction, such as that proposed by Mr Milsom, to be adopted.

Application to the facts of this case

26. Having dealt with the proper construction of the section in question, we turn to consider whether in this case the proceedings for unfair dismissal instituted by the Claimant in respect of a resignation that occurred after EC had been completed are proceedings relating to matters in respect of which she had provided ACAS with the prescribed information in the prescribed manner. Employment Judge Hyde approached this case on the basis that whatever the limits of a tribunal’s jurisdiction in relation to section 18A(1) the facts of this case fall clearly within the parameters of that section. The Claimant’s claim form relies on all matters raised as breaches of the implied term of mutual trust and confidence that formed part of the matters notified to ACAS as part of EC. In addition, she complains about the failure to deal with her grievance appropriately and ultimately about dismissal. The failure to deal with her grievance appropriately and her constructive dismissal are the only matters that do not pre-date the institution of the EC process. In the circumstances, and in light of the particular facts, the Judge was satisfied that there was a connection between the factual matters complained about in the claim form and matters that were in dispute at the time of the EC process. The fact that the Claimant’s resignation occurred afterwards did not undermine that conclusion in circumstances where there was, the Judge held, no requirement to notify a claim or cause of action.

27. Those conclusions were conclusions to which the Employment Tribunal was entitled to come in all the circumstances and moreover, they are conclusions with which we agree. We can detect no error of law in relation to her decision, and, in those circumstances, this appeal fails and is dismissed.

United Kingdom Employment Appeal Tribunal