Victimisation Claim Survives Absence of ACAS Certificate

The law is always focused on encouraging voluntary dispute resolution and that is certainly so in employment cases where workers must consult with the Advisory, Conciliation and Arbitration Service (Acas) before lodging complaints with Employment Tribunals. However, in one guideline case, a failure to do so was not fatal to a woman’s amendment of her claim.

The woman worked for a technology company for about two years before she resigned whilst on maternity leave. She presented a claim to an Employment Tribunal (ET), saying that she had been discriminated against by reason of her pregnancy. In accordance with the Employment Tribunals Act 1996, she had notified Acas of that claim and had been issued with an early conciliation (EC) certificate.

She subsequently sought to amend her claim to include a complaint of victimisation. An EC certificate was not obtained in respect of that claim and the company argued that she should thus be barred from pursuing it further. That argument did not persuade the ET, which permitted the amendment.

In dismissing the company’s challenge to that decision, the Employment Appeal Tribunal noted that, whilst it is necessary to obtain an EC certificate prior to commencing ET proceedings, doing so is not a prerequisite for an amendment application. Although the victimisation claim was new, it was related to an existing matter already before the ET and the woman did not have to go through the entirely technical exercise of consulting Acas for a second time. The ruling enabled the woman to proceed with the entirety of her claim.