Reynolds v Abel Estate Agent Ltd & Ors

Factual and Procedural Background

The Claimant (who appears as the Respondent in the appeal) worked from December 2019 for an estate agency/property-management business in Hertford run through a group of companies identified in this summary as Company A, Company B and Company C (together "the Company group"). The Claimant was dismissed on 6 April 2023, on an asserted redundancy ground.

On 12 April 2023 the Claimant presented claims in the Employment Tribunal (ET) alleging (a) automatic unfair dismissal under section 103A of the Employment Rights Act 1996 ("the unfair dismissal claim") on the basis that the principal reason for dismissal was protected disclosures (whistleblowing), and (b) detriment contrary to section 47B of the Employment Rights Act 1996 ("the detriment claim"). The Claimant named the three Company-group entities and three individuals involved in management (referred to below as the Fourth to Sixth Appellants) as respondents. The three individuals could not be liable for the unfair dismissal claim (which is employer-only) but could be liable under section 47B(1A) if they participated in the decision to dismiss.

The Claimant included an application for interim relief in relation to the unfair dismissal claim, which must be made within seven days of the effective date of termination. Interim relief applications are exempt from the ACAS early conciliation certificate (ECC) requirement (the "interim relief exemption"). An interim relief application was granted in the ET hearing on 30 May 2023 (though that interim relief order was later set aside at case management; that subsequent event is not material to the legal issues on appeal).

At a case management hearing before Judge Crosfill on 20 September 2023, the Appellants' representative (Attorney Airey of Law Firm A) objected that the Claimant had not supplied an ACAS early conciliation number (ECN) on the claim form. The judge accepted that the detriment claim should have been rejected at the Rule 10 gateway stage for omission of an ECN, and a belated notice of rejection was issued. The ET judge granted the Claimant permission to amend the claim form to add the individual respondents, which had the practical effect of curing the early conciliation omission for the detriment claim as presented.

The Appellants appealed to the Employment Appeal Tribunal (EAT). Judge Swift (sitting alone) heard the appeal on 12 December 2024 and reserved judgment; by a judgment handed down on 20 January 2025 he dismissed the appeal but on different reasoning to the ET. Judge Swift held it was too late to reject the detriment claim and, while it could in principle be struck out as a case-management matter for non-compliance, striking it out was not justified. The Appellants obtained permission from Judge Swift to appeal to the Court.

The appeal to this Court raised whether the ACAS early conciliation requirements (section 18A of the Employment Tribunals Act 1996 and associated regulations and Rules) go to the jurisdiction of the ET such that failure to invoke early conciliation (and thus omission of an ECN) deprives the ET of the power to hear the detriment claim. The Claimant filed a late Respondent's Notice seeking to rely alternatively on the ET's original reasoning permitting amendment (i.e., a cross-appeal point).

Legal Issues Presented

1. Whether the requirement in section 18A of the Employment Tribunals Act 1996 (and associated Regulations and Procedure Rules) that a prospective claimant provide prescribed information to ACAS before instituting "relevant proceedings" (and the related requirement that a claim be accompanied by an ECC or ECN) is a jurisdictional requirement such that failure to comply deprives the Employment Tribunal of power to hear the claim.
2. Whether, if section 18A is jurisdictional, an Employment Tribunal (or the EAT exercising ET powers) is obliged to dismiss or strike out a detriment claim presented without compliance with section 18A and without an ECN.
3. Whether the ET had the power to permit amendment/joinder to allow a previously rejected or jurisdictionally deficient detriment claim to proceed as an amendment to existing proceedings, and whether section 18A applies to applications to amend (i.e., whether amendment that introduces a new claim or new respondent requires prior early conciliation in the same way as institution of fresh proceedings).

Arguments of the Parties

Appellants' Arguments (as presented)

• The Appellants argued that non-compliance with section 18A (including failure to obtain an ECC and to supply an ECN) deprived the ET of jurisdiction to consider the detriment claim, and so the claim must be dismissed for lack of jurisdiction. Counsel relied on the text and purpose of section 18A and submitted that where the statutory pre-condition is not satisfied the tribunal cannot entertain the claim.
• On the amendment point, the Appellants argued that section 18A applies to any institution of relevant proceedings, and that introducing a new claim or new respondent by amendment is tantamount to instituting those proceedings; therefore amendment should not be permitted where early conciliation was not invoked.

Respondent's (Claimant's) Arguments (as presented)

• The Claimant (through intervening submissions) argued that Judge Swift's decision below was correct: once a claim passes the procedural gateway and has been sent to respondents, a tribunal should not be permitted to treat the filing as a nullity; any remedy for non-compliance falls to be dealt with by case-management powers (rule 6, rule 27, rule 37) rather than by treating the claim as jurisdictionally invalid. The Claimant also relied on the ET's grant of permission to amend as an appropriate exercise of case-management discretion to cure the omission.
• It was also argued on the cross-appeal that the ET's power to permit amendment is available even where a claim might otherwise fall to be dismissed for lack of jurisdiction, so allowing amendment in this case was within the ET's discretion and so ought to be restored.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Timis v Osipov [2018] EWCA Civ 2321	Shows that individuals can be liable under section 47B(1A) for participating in detriment (context for naming individual respondents).	Used to explain why the three individual respondents could be defendants to the detriment claim though not to unfair dismissal.
Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445	Describes the early conciliation scheme as an opportunity led by the prospective claimant; emphasises the limited nature of the claimant's obligation to contact ACAS.	Adopted for the proposition that the early conciliation process is an opportunity and that the initial obligation to contact ACAS is limited; cited by those who argued that section 18A does not automatically oust jurisdiction.
Science Warehouse Ltd v Mills [2016] ICR 252	Explains the limited, voluntary character of the early conciliation process and observes that an ECC may be issued almost immediately where a prospective claimant indicates no interest in conciliation.	Relied on by the Court (through earlier judges) to characterise section 18A as imposing a limited personal obligation on prospective claimants rather than an obvious jurisdictional bar.
Sainsbury's Supermarkets Ltd v Clark [2023] ICR 1169 (CA)	When a claim has passed the gateway rules and been treated as formally valid, it cannot be retrospectively rejected for procedural non-compliance; consequences should be dealt with by case management (rule 27/37).	Central to the respondents' and some judges' reasoning. It was discussed at length as authority that claims accepted at the gateway should not be belatedly rejected; the present opinion considered Clark and distinguished its application to cases of substantive non-compliance.
Pryce v Baxterstorey Ltd [2022] EAT 61	Accepted (in that EAT decision) that section 18A(8) is jurisdictional and that a claim presented without an ECC should be rejected/dismissed.	Noted as earlier EAT authority taking the jurisdictional view; the present Court treated it as persuasive but not binding and addressed its reasoning.
Cranwell v Cullen (UKEATPAS/0046/14)	Held by Langstaff P in the EAT to treat failure to provide prescribed information to ACAS (absent exemption) as depriving ET of jurisdiction.	Discussed as an earlier decision supporting the position that section 18A is jurisdictional; the Court considered its persuasive value but noted aspects of its treatment in later appellate reasoning.
Radakovits v Abbey National plc [2009] EWCA Civ 1346	Illustrates that statutory time limits in unfair dismissal context go to jurisdiction (the tribunal "shall not consider" if time limit not met).	Relied upon by parties to argue by analogy with section 18A; Court analysed the contrast between explicit "tribunal shall not consider" language in limitation provisions and section 18A's wording.
Dedman v British Building & Engineering Appliances [1973] IRLR 379	Authority cited for the principle that jurisdictional bars cannot be conferred away by agreement and that tribunals cannot hear claims outside their jurisdiction.	Referenced in discussion of jurisdictional limits (supporting the general proposition that jurisdictional conditions are mandatory).
Abercrombie v AGA Rangemaster Ltd [2013] ICR 209	Interpreted the 2002 Act dispute-resolution regime and concluded that pre-proceedings statutory requirements could deprive the ET of jurisdiction; illustrates analogous context.	Referred to as a supporting example where pre-proceedings statutory schemes were treated as jurisdictional; the opinion drew cautious support from that reasoning.
Selkent v Moore (referenced)	Guidance on allowing amendments and the exercise of discretion in tribunal practice.	Cited (through earlier authorities) as part of the established approach to amendments and case-management discretion considered in Science Warehouse and Drake.
Webster v Rotala Ltd (UKEAT/0015/20)	Discusses a mixed claim where interim relief exemption applied to one head but not another; evidentially relevant to distinguishing rejection vs. acceptance at gateway.	Noted by the ET judge as a case addressing similar factual combinations (interim relief + other claims) and the consequences for ECN requirements.
Hanlon v Law Society [1981] AC 124 and R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28	Cited by parties when debating whether secondary legislation may be invoked as an aid to statutory construction.	Referenced in argument; the Court observed the point but did not need to decide it for present purposes.

Court's Reasoning and Analysis

The Court's analysis proceeded in several discrete steps, each driven by statutory construction, the regulatory scheme (Early Conciliation Regulations and Procedure Rules), and authorities addressing analogous pre-proceedings regimes.

1. Meaning of "jurisdiction" and the task of construction.

   The Court acknowledged that "jurisdiction" can denote different concepts (competence to hear a type of claim versus statutory limits that preclude determination unless certain conditions are met). The core question was whether, by ordinary principles of construction, the requirements of section 18A (to contact ACAS and obtain an ECC before instituting relevant proceedings) are of a character that, if not satisfied, the ET is statutorily precluded from exercising its jurisdiction to determine the claim.

2. Textual analysis of section 18A.

   The Court focused on subsections (1) and (8) of section 18A. Subsection (1) imposes an obligation on the prospective claimant to provide prescribed information to ACAS; subsection (8) provides that a person subject to subsection (1) "may not present an application to institute relevant proceedings without a certificate under subsection (4)". The Court rejected a hyper-literal approach that because the words directly address the claimant they do not affect tribunal competence. Instead the Court treated the prohibition on presenting proceedings as naturally corollary to a tribunal's inability to entertain a claim not lawfully presented: if the claimant may not present proceedings, the tribunal cannot be empowered to consider them.

3. Purpose of the early conciliation scheme and weight of that purpose.

   The Court accepted that Parliament introduced the early conciliation scheme to reduce unnecessary Employment Tribunal litigation by providing ACAS with an opportunity to conciliate before proceedings begin. The Court held that it is consistent with that purpose to treat the early conciliation pre-condition as going to jurisdiction: the tribunal should not be able to entertain claims where the statutory-created opportunity for conciliation has not been afforded.

4. Distinction between substantive non-compliance and evidential non-compliance.

   The Court emphasised the difference between (a) evidential non-compliance (where an ECC exists but the claimant omitted or mis-recorded the ECN on the claim form) and (b) substantive non-compliance (where the claimant never contacted ACAS and no ECC exists). The Court explained that the consequences differ: evidential errors are case-management matters (to be addressed under rules such as rule 6, rule 12, rule 37), whereas substantive non-compliance engages the statutory bar in section 18A (as construed by the Court).

5. Consideration of practical consequences (late-detected non-compliance) and counter-arguments.

   The Court addressed the argument that treating section 18A as jurisdictional would be unduly harsh when non-compliance is discovered only after the claim has passed the gateway and substantive steps have been taken. The Court rejected the idea that such practical difficulty justified an unnatural construction of section 18A; such exceptional outcomes did not outweigh the statutory text and purpose. The Court noted, however, that cases of late-detected substantive non-compliance will be exceptional, and that evidential lapses are handled by case management.

6. Analysis of relevant authorities.

   The Court considered prior authorities: some earlier EAT decisions (Pryce, Cranwell) and comments in the Court of Appeal's Clark decision were identified as supporting the jurisdictional view. Clark was analysed carefully: Clark itself involved evidential non-compliance and held that claims accepted through the gateway could not be retrospectively rejected; a passage in Clark endorsing Cranwell was treated as obiter. The Court found persuasive support in earlier authorities for treating pre-proceedings schemes as jurisdictional (and cited Abercrombie on an analogous statutory pre-proceedings regime).

7. Distinguishing the amendment/joinder context.

   The Court agreed with earlier ET/EAT authorities (Science Warehouse; Drake) that section 18A is directed at prospective claimants instituting proceedings, not at an existing claimant seeking to amend live proceedings to add claims or respondents. The Court concluded that an application to amend existing proceedings is a matter for the ET's case-management discretion; it would be incongruous (and practically unworkable) to require claimants to invoke early conciliation each time an amendment is sought once proceedings are already instituted.

8. Exercise of discretion in the instant case.

   Applying these principles to the facts, the Court concluded that:

   • The detriment claim as originally presented involved substantive non-compliance with section 18A and, therefore, the ET had no jurisdiction to entertain that claim in its original form.
   • Separately, the ET did have power, as a case-management exercise, to permit the Claimant to amend the proceedings and to join the individual respondents; the Court found nothing wrong with Judge Crosfill's exercise of discretion in permitting amendment in the particular factual context (venial nature of the omission given timing pressure, close factual connection between claims, little prejudice to respondents).

Holding and Implications

Holding (core ruling):

APPEAL DISMISSED

Explanation of the holding and direct consequences:

• The Court held that the requirements of section 18A of the Employment Tribunals Act 1996 (to provide prescribed information to ACAS and not to present proceedings without an ECC where required) are jurisdictional in effect: where a claimant has not invoked the early conciliation process at all (substantive non-compliance) and thus has no ECC/ECN, the ET lacks jurisdiction to entertain that claim as presented and the claim should have been dismissed or struck out for want of jurisdiction.
• However, the Court also held that section 18A does not, by its terms and purpose, prevent an Employment Tribunal from exercising case-management powers to permit an existing claimant to amend live proceedings to add claims or parties. An application to amend existing proceedings is governed by the ET's case-management discretion (for example, rules such as rule 34, and guided by authorities such as Science Warehouse and Drake). Thus, even where an original presentation was defective for lack of an ECC, the tribunal may in an appropriate case grant permission to amend so that the claimant may pursue the same or closely connected claim within the existing proceedings.
• Applied to the present facts, the Court found the EAT was wrong to conclude that the ET had jurisdiction to hear the detriment claim as originally presented (no ECC existed), but upheld the ET's exercise of discretion permitting amendment and joinder; consequently the Claimant may pursue the detriment claim by virtue of the amendment order.

Broader implications and limits (as discussed in the opinion):

• The opinion indicates that there is an important distinction between substantive non-compliance (which engages the jurisdictional bar) and evidential non-compliance (which is a procedural defect to be dealt with by case management and should not result in retrospective rejection once the claim has passed the gateway, per Clark).
• The decision recognises that treating section 18A as jurisdictional may produce harsh outcomes in exceptional cases (for example where non-compliance is only discovered after a claim has been processed), but the Court concluded that such outcomes do not justify departing from the statutory language and purpose.
• The Court affirmed that an ET's discretion to permit amendment remains an important mechanism to avoid undue injustice where the added claim is closely connected to existing proceedings; such an amendment may sensibly be preferred to requiring re-presentation of fresh proceedings (which might raise limitation or timeliness problems).

Administrative / Formal Notes

Judges who concurred with the opinion included Judge Snowden and Judge Falk (their short concurrence is recorded in the opinion).

Availability of Information

This summary is based exclusively on the provided opinion. Where the original opinion did not contain further party-by-party pleadings, evidence detail, or other materials, those items are not included here.