Introduction

This Court of Appeal judgment clarifies two long-contested questions about the “early conciliation” regime administered by ACAS under section 18A of the Employment Tribunals Act 1996 (ETA) and its interface with the Employment Tribunals Rules of Procedure:

• First, whether failure to invoke early conciliation (EC) and obtain an early conciliation certificate (ECC) before issuing a claim deprives the Employment Tribunal (ET) of jurisdiction over that claim.
• Second, whether the EC requirement applies again when a claimant seeks to add new claims or parties by amendment to already-issued proceedings.

The Claimant (Ms Reynolds) brought:

• An automatic unfair dismissal claim under section 103A of the Employment Rights Act 1996 (ERA) with an application for interim relief (for which there is an EC exemption), and
• A whistleblowing detriment claim under section 47B ERA (to which no EC exemption applied).

She did not invoke early conciliation at all before issuing proceedings. The ET later accepted an objection that the detriment claim lacked an EC number (ECN) and purported to reject it; but it also granted her permission to amend so that the detriment claim could proceed. The EAT concluded the claim should not be rejected at that late stage and declined to strike it out, holding there was no jurisdictional bar. The Court of Appeal has now allowed the employers’ appeal on the jurisdictional point, while upholding the ET’s separate decision to permit amendment.

Summary of the Judgment

• Jurisdictional precondition: A claimant who fails to comply with section 18A ETA—i.e., who does not invoke early conciliation and obtain an ECC before issuing “relevant proceedings”—is barred from proceeding. This non-compliance is a jurisdictional bar, not merely a case management issue. The ET “has no power to determine the claim” as presented.
• No late “rejection,” but dismissal for want of jurisdiction: Once a claim passes the Rule 10/12 gateway, it cannot be belatedly “rejected” (Sainsbury’s v Clark applied). However, if substantive non-compliance with section 18A is later discovered, the ET must decline jurisdiction (the Court favoured using Rule 27 as the procedural vehicle).
• Amendments are different: Section 18A applies to the institution of proceedings by a “prospective claimant,” not to amendments in existing proceedings. The EC precondition does not have to be satisfied anew when adding claims or respondents by amendment. The ET retains a discretion (guided by Selkent principles) to permit such amendments.
• Outcome: The detriment claim, as originally issued without EC, could not proceed for want of jurisdiction. Nonetheless, the ET’s decision to allow the detriment claim to be introduced by amendment into the existing unfair dismissal proceedings was upheld. The Claimant can therefore still pursue the detriment claim.

Analysis

Precedents Cited and Their Influence

• Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386; [2023] ICR 1169
  • Concerned evidential non-compliance (ECCs existed, but some ECNs were omitted on forms). Held: once claims pass the ET’s gateway, they cannot be “rejected” later under Rules 10/12. Any later consequences are a matter for case management (Rule 6/37) or jurisdictional determination (Rule 27).
  • Applied here to confirm there could be no belated “rejection.” But Clark did not decide whether section 18A goes to jurisdiction; the present Court now answers that question affirmatively for substantive non-compliance.
• Cranwell v Cullen UKEATPAS/0046/14
  • Langstaff P proceeded on the basis that section 18A is jurisdictional. Approved obiter by Bean LJ in Clark. The Court of Appeal in Reynolds treats this as persuasive and aligns with it.
• Pryce v Baxterstorey Ltd [2022] EAT 61
  • EAT assumed section 18A(8) sets a jurisdictional requirement and dismissed a claim presented before EC. The Court here regards Pryce as persuasive of the jurisdictional reading.
• Science Warehouse Ltd v Mills [2016] ICR 252 (EAT, HHJ Eady QC) and Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445 (EAT, Langstaff P)
  • Key point: section 18A addresses prospective claimants and the institution of proceedings; it does not govern amendments to existing claims. The Court of Appeal endorses this analysis, elevating it from EAT guidance to Court of Appeal authority.
• Abercrombie v AGA Rangemaster Ltd [2014] ICR 209 (CA)
  • Under the (now repealed) Employment Act 2002 statutory grievance regime, the Court accepted that pre-claim procedural steps could operate as a jurisdictional bar. While the statutory language differs, this supports the naturalness of treating pre-issue conciliation requirements as jurisdictional.
• Radakovits v Abbey National Plc [2010] IRLR 307 (CA)
  • Explains that ERA time limits framed as “shall not consider” are jurisdictional. The Court contrasts the drafting of section 18A with those provisions but declines to treat drafting differences as determinative given the broader statutory scheme and purpose.
• Timis v Osipov [2019] ICR 655 (CA)
  • Cited for background: co-workers can be liable under s.47B(1A) ERA for the detriment of dismissal in whistleblowing cases, whereas unfair dismissal lies only against the employer.
• Webster v Rotala Ltd UKEAT/0015/20
  • Addressed interplay between interim relief and EC obligations, reinforcing that the interim relief exemption applies only to the s.103A unfair dismissal component.

Legal Reasoning

The Court’s reasoning proceeds in two stages: (A) whether section 18A operates as a jurisdictional bar; and (B) whether section 18A applies to amendments.

A. Section 18A ETA: a jurisdictional precondition

• Text and structure: Section 18A(1) requires a “prospective claimant” to give prescribed information to ACAS before presenting an application to institute “relevant proceedings.” Section 18A(8) prohibits presentation of such proceedings without an ECC. While both provisions are framed as obligations on the claimant (and do not explicitly say “the tribunal shall not consider”), the Court holds the natural corollary is that if presentation is prohibited, the tribunal cannot entertain the claim.
• Drafting contrasts are not decisive: Although limitation provisions (e.g., ERA s.48(3), s.111(2)) use the “shall not consider” formula, the Court finds it inappropriate to elevate this drafting difference into a determinative distinction. The early conciliation scheme spans many statutory jurisdictions with varied drafting histories; Parliament can set a jurisdictional precondition without using identical words across statutes.
• Purpose: Parliament introduced EC to ensure there is an opportunity for conciliation before proceedings are started. Treating the EC requirement as jurisdictional is consistent with, and reinforces, that purpose. The voluntary nature of the conciliation itself is immaterial: the statutory policy is that the “horse must be led to water,” even if it need not drink.
• Late-discovered non-compliance: While late discovery might in some cases entail practical hardship (e.g., limitation issues on re-presentation), such scenarios are exceptional. The general rule’s alignment with legislative purpose justifies a jurisdictional bar even if particular cases see limited conciliation utility when non-compliance is discovered after issue.
• Rule mechanics: Clark precludes belated “rejection” under Rules 10/12 once the claim has passed the gateway. But a jurisdictional bar can still be given effect by dismissal for lack of jurisdiction. The Court considers Rule 27 the “more natural vehicle” procedurally (though Rule 37’s terms could be used); Rule 6 can waive any procedural irregularity in how the point is dealt with.

B. Amendments: section 18A does not apply

• Construction: The phrase “presents an application to institute relevant proceedings” targets the initiation of a set of proceedings by a prospective claimant. It does not naturally extend to amending claims within existing proceedings, including adding further claims or respondents.
• Support from EAT authorities now confirmed by the Court of Appeal: The Court endorses Science Warehouse and Drake, which held that the EC requirement is about pre-issue engagement and not a rolling precondition resurfacing at every amendment stage.
• Policy fit: Once proceedings exist (and the pre-issue EC opportunity has been afforded for the underlying matter), it would be “extremely unlikely” Parliament intended EC to be reinvoked for every amendment—often multiple and late in the timeline—when conciliation prospects have already proven limited. Imposing repeated, formal EC cycles would be largely futile and administratively burdensome.
• Discretion remains key: The ET retains full discretion (Selkent guidance) whether to allow an amendment. The fact that amendment would bypass a fresh EC step may be relevant but is not determinative. Connection with existing issues, reasons for lateness, and prejudice all matter.

Impact and Practical Consequences

Key impacts

• Clear dividing line established:
  • Substantive non-compliance with section 18A (no EC invoked, no ECC obtained at issue) = jurisdictional bar. The ET must decline to hear the claim as presented.
  • Evidential non-compliance (e.g., an ECC exists but the ECN was omitted or mis-stated) = not jurisdictional. Clark applies; late “rejection” improper; case management or technical correction may suffice.
• Amendment route confirmed: ETs can permit the same claim to be reintroduced by amendment into existing proceedings (where at least one head of claim was validly issued), because section 18A does not apply to amendments. This elevates EAT authority (Science Warehouse, Drake) to Court of Appeal level.
• Interim relief plays a special role: Where a claimant must file an interim relief claim within seven days and cannot realistically complete EC for companion claims, the amendment pathway is now a Court of Appeal—approved solution, subject to discretion and fairness.
• No waiver of jurisdiction: Respondents cannot confer jurisdiction by consent or inaction where section 18A preconditions were not satisfied at issue (echoing the logic of Radakovits and similar ERA “shall not consider” cases).
• Procedural route: On late discovery of substantive non-compliance, the ET should decline jurisdiction, with Rule 27 the more natural procedural tool. Rule 6 can regularise any deviations from the ideal sequence.

Practical checklists

For claimants

• Before issuing any claim that is “relevant proceedings” under section 18 ETA, obtain an ECC and include the ECN on the ET1—unless a prescribed exemption applies.
• Interim relief scenario: If you need to file an s.103A unfair dismissal claim with interim relief within seven days, you are exempt from EC for that claim only. For associated detriment or other claims:
  • Either (a) try to obtain an ECC quickly for those other claims before issue; or
  • (b) issue the interim relief/unfair dismissal claim, then apply promptly to amend to add the other claims, explaining the connection and tight deadlines. Reynolds confirms the ET can permit this.
• If uncertain who the employer is, consider invoking EC against all potential respondents. Ensure name-matching accuracy; Rules 12(e)-(f) can otherwise bite.
• Where an ECC exists but the ECN was omitted on the ET1, seek correction rather than risking dismissal; Clark indicates belated “rejection” is impermissible.

For respondents

• Scrutinise the ET1 for an ECN or a valid exemption. Raise substantive non-compliance promptly.
• Remember: belated “rejection” is not available; the correct route is to invite the ET to dismiss for want of jurisdiction (Rule 27) or to strike out for non-compliance with Rules if appropriate (Rule 37), although jurisdictional language sits more comfortably with Rule 27.
• Be prepared that the ET may nevertheless allow amendment, reintroducing the claim into existing proceedings if justice requires.

For tribunal staff and judges

• At gateway: apply Rules 10/12 strictly. The interim relief exemption is narrow—only the s.103A unfair dismissal claim is exempt. Companions like s.47B detriment claims usually require an ECN.
• Post-gateway: no late “rejection.” If substantive non-compliance emerges, consider dismissal for want of jurisdiction via Rule 27. Use Rule 6 to smooth any procedural irregularities.
• Amendments: Apply Selkent principles. The mere absence of pre-amendment EC is not disqualifying, but its avoidance may be a relevant factor in the discretionary balance.

For ACAS

• Reynolds avoids imposing an obligation for EC re-runs on every amendment. That limits administrative burdens and aligns with EC’s pre-issue objective.

Complex Concepts Simplified

• Early Conciliation (EC): A pre-claim step where the claimant gives basic information to ACAS, which then offers conciliation. Participation is voluntary, but contacting ACAS and obtaining an ECC is generally mandatory before issuing “relevant proceedings.”
• ECC and ECN: The Early Conciliation Certificate (ECC) is issued by ACAS; it contains the unique Early Conciliation Number (ECN) which must be put on the ET1 unless an exemption applies.
• Substantive vs evidential non-compliance:
  • Substantive: No EC was invoked, no ECC existed at issue—this engages the jurisdictional bar.
  • Evidential: EC was done and an ECC exists, but the ET1 omitted/mis-stated the ECN—this is a procedural defect, not jurisdictional (Clark), to be addressed by case management.
• Jurisdictional bar: A statutory precondition that prevents the ET from hearing a claim; parties cannot waive or confer jurisdiction by agreement.
• Rule 10/12 (Rejection): Gateway screening by staff/Judge for defective ET1s. Once passed, late “rejection” is not available.
• Rule 27 (Jurisdiction): The court-endorsed route to dismiss a claim for lack of jurisdiction discovered after the gateway. The claimant must have a chance to make representations.
• Rule 37 (Strike-out): Discretionary case management power (e.g., no reasonable prospect, or non-compliance with Rules). Less apt than Rule 27 for pure jurisdiction points, but available.
• Interim relief exemption: Claimants applying within 7 days for interim relief in a s.103A unfair dismissal claim are exempt from EC for that claim only.
• Selkent principles: Guide the discretion to permit amendments: nature and timing of the amendment, connection to existing issues, reasons for delay, and prejudice.

Conclusion

Reynolds v Abel Estate Agent Ltd establishes two complementary rules that will guide ET practice:

• Rule 1 (Jurisdiction): Non-compliance with section 18A ETA—where no early conciliation was invoked and no ECC obtained before issuing relevant proceedings—creates a jurisdictional bar. The ET cannot hear the claim as presented. If discovered after the gateway, the appropriate response is dismissal for want of jurisdiction, typically using Rule 27.
• Rule 2 (Amendments): Section 18A does not apply to amendments of existing proceedings. The ET can, in its discretion and applying Selkent, allow claimants to introduce additional claims or respondents by amendment even where those additional claims were not preceded by early conciliation. The mere avoidance of a fresh EC step is a relevant but not decisive factor.

The judgment harmonises the Clark “no late rejection” principle with a clear jurisdictional understanding of section 18A for substantive non-compliance, while endorsing the EAT line in Science Warehouse and Drake that EC is a pre-issue gateway and not an amendment throttle. Practically, it offers a fair and workable route for claimants who must file interim relief claims at pace and for tribunals to police jurisdiction consistently without overburdening ACAS or undermining the core purpose of early conciliation.