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Practice and Procedure: Amendment to Claim and Acas Early Conciliation

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 Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

When an employment tribunal claim is amended to add a new cause of action, is fresh early conciliation required?

No, held the EAT in Science Warehouse Limited v Mills.

Ms Mills resigned her employment with her employer whilst on maternity leave. She made various allegations under the Equality Act 2010 and went through early conciliation. No settlement was reached and ACAS issued an EC certificate.

The Claimant then presented an employment tribunal claim form (ET1) complaining of discrimination on account of pregnancy or maternity contrary to the Equality Act 2010. This was defended by the employer. The employer also said in its ET3 that, had she not resigned, the Claimant would have been subject to an investigation and potential disciplinary action in relation to a conduct issue.

When the Claimant received that response, she made an application to amend her claim to include a complaint of victimisation in respect of the employer's allegation against her in the ET3.

The employer objected to the amendment on the basis that the Claimant had not gone through the early conciliation procedure in relation to that added claim.

The EAT held however that section 18A of the Employment Tribunals Act 1996 did not require that the EC process be undertaken in respect of each claim, as it used the broad terminology of "matter". When a Claimant had lodged a previously valid employment tribunal claim following an EC reference and was applying to amend to add a new, but related, claim, this was a matter for the employment tribunal's general case management powers and a fresh application for early conciliation was not necessary.