Science Warehouse Ltd v Mills (Practice and Procedure : Amendment)

Factual and Procedural Background

The Claimant was employed by the Respondent from 1 April 2013 until she resigned on 9 March 2015 while on maternity leave. On 28 January 2015, the Claimant submitted details of prospective claims under sections 11, 13, and 18 of the Equality Act 2010 to ACAS and received an Early Conciliation (EC) certificate on 27 February 2015. On 8 April 2015, the Claimant filed an Employment Tribunal (ET) claim form (ET1) alleging discrimination related to pregnancy or maternity. In the Respondent's response, it was stated that the Claimant would have been subject to a misconduct investigation had she not resigned. After receiving this response, the Claimant sought to amend her ET claim at a Preliminary Hearing on 21 July 2015 to add a victimisation claim related to the new allegation. The Respondent objected solely on the basis that the Claimant had not undergone the ACAS EC process for this additional claim. The ET allowed the amendment, and the Respondent appealed against this decision.

Legal Issues Presented

1. Whether the requirement to undergo ACAS Early Conciliation under section 18A of the Employment Tribunals Act 1996 applies to amendments adding new claims to an existing ET claim.
2. Whether an amendment to add a new cause of action post-dating the original ET1 requires a new EC certificate or whether the ET's general case management powers under Rule 29 of the Employment Tribunals Rules 2013 govern such amendments.
3. The proper interpretation of the term "matter" in section 18A in the context of EC requirements for new claims added by amendment.

Arguments of the Parties

Respondent's Arguments

• The term "matter" in section 18A should be understood as the specific claim, thus requiring a new EC certificate for any new claim added by amendment.
• The Claimant should have obtained an EC certificate for the victimisation claim before applying to amend the ET1.
• Allowing amendment without a new EC process could permit Claimants to avoid EC by adding new claims later, undermining the EC scheme.
• The list of exemptions in section 18A(7) does not include additional claims added by amendment, so no exemption applies here.
• The ET's distinction between instituting proceedings and amending claims is incorrect and could lead to procedural abuses.

Claimant's Arguments

• Section 18A applies only to prospective claimants instituting proceedings, not to existing claimants amending claims.
• The EC requirement is triggered before the initial claim is presented; amendments do not constitute instituting new proceedings.
• The prescribed information required by EC is limited to names and addresses, which had already been provided.
• The ET has residual case management powers under Rule 29 to allow amendments, including adding new claims arising after the ET1.
• Rule 10 of the ET Rules requires an EC certificate for lodging claims but does not apply to applications to amend existing claims.
• The amendment was timely, related to the original claim, and not obviously unmeritorious.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework of section 18A of the Employment Tribunals Act 1996, which requires prospective claimants to notify ACAS before instituting relevant proceedings. The court emphasized the deliberate use of the broad term "matter" rather than the narrower "claim" or "cause of action," concluding that the EC requirement is intended for prospective claimants instituting new proceedings, not for existing claimants amending claims.

The court noted that the EC Rules do not require detailed specification of each cause of action during the EC process, only the prescribed information such as names and addresses. It rejected the Respondent's argument that each new claim added by amendment must undergo a fresh EC process, holding that such amendments fall within the ET's case management discretion under Rule 29 of the ET Rules 2013.

The court acknowledged the Respondent's concerns about potential circumvention of the EC process but found that the ET's judicial discretion to allow or refuse amendments serves as an adequate safeguard. The court also observed that if an amendment is not permitted, the Claimant would become a prospective claimant for the new matter and would then be obligated to comply with the EC requirements.

Ultimately, the court found no error of law in the ET's decision to allow the amendment without requiring a new EC certificate and concluded that this was a proper exercise of the ET's case management powers.

Holding and Implications

The appeal by the Respondent is dismissed.

The court held that section 18A of the Employment Tribunals Act 1996 does not require a new ACAS Early Conciliation certificate for a Claimant seeking to amend an existing ET claim to add a new, related cause of action arising after the original claim. Such amendments are governed by the ET's case management powers under Rule 29 of the Employment Tribunals Rules 2013. The decision confirms that the EC process applies primarily to prospective claimants instituting proceedings and does not extend to amendments by existing claimants. The ruling has the direct effect of allowing Claimants to add related claims by amendment without undergoing a separate EC process, provided the ET exercises its discretion appropriately. No new precedent beyond the application of existing case management principles was established.