Clark and Others v Sainsbury’s Supermarkets Ltd and another
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] EAT 143 |
| Year | 2022 |
| Court | Employment Appeal Tribunal |
2022 July 14; Sept 21
Judge
Industrial relations - Employment tribunals - Early conciliation - Multiple equal pay claims on same claim forms - All claimants named on early conciliation certificates or schedules thereto issued by Acas - Claims with early conciliation certificate number relating to claimant somewhere on claim form allowed to proceed - Claims rejected where claimant’s certificate number not included - Whether inclusion of one valid certificate number relating to named claimant sufficient - Claimants whose claims rejected appealing - Respondent employers seeking to cross-appeal in respect of claims allowed to proceed - Whether valid “cross-appeal” where respondent thereto not appellant -
Prior to presenting a number of equal pay claims on multiple claim forms, employees of the respondents contacted Acas to obtain early conciliation certificates, pursuant to the mandatory procedure in section 18A of the Employment Tribunals Act 1996. When presented, each multiple claim form contained an early conciliation number, but some claim forms included claimants whose names appeared on an early conciliation certificate the number of which was not included on the claim form. At a preliminary hearing to consider whether the requirements of rule 10(1) of the Employment Tribunals Rules of Procedure 2013 had been satisfied, an employment judge permitted claims to proceed where there was an early conciliation number on the claim form that appeared somewhere on an early conciliation certificate on which the name of the claimant also appeared, while rejecting claims by those claimants whose names had appeared on an early conciliation certificate but where no number appearing on that certificate had been included anywhere on the claim form. Those claimants whose claims were rejected appealed, contending that rule 10 did not require an early conciliation number to be provided in relation to each claimant on a multiple claim form, requiring only one valid number from a certificate pertaining to a claimant who had gone through early conciliation. The respondents sought to cross-appeal in respect of the refusal to reject the claims of the other claimants, contending that each claimant’s name and an early conciliation certificate number specific to that claimant had to appear on the claim form.
On the appeal and the cross-appeal—
Held, (1) allowing the appeal, that rule 10(1) of the Employment Tribunals Rules of Procedure 2013, which provided for the rejection of a claim form in the absence of certain information, adopted a different wording for paragraph (b), where it specifically referred to “each” claimant and respondent’s name and address, and for paragraph (c), where it referred to “an” early conciliation number; that that suggested that a distinction was being drawn and that the singular in paragraph (c) did not include the plural; that it was also significant that paragraph (c) was a gate keeping provision, and, should a prospective claimant have been subject to a requirement to comply with early conciliation and have failed to do so, but nonetheless been able to present a claim on the same claim form as another party who had entered an early conciliation number, that would not prevent a respondent at a later stage raising the issue and the proceedings in relation to that claimant would be a nullity; that, in context, there was nothing implausible in rule 10 meaning what it said, namely that the name and address of each claimant and respondent had to be provided but that only “an” early conciliation number was required; that, in the present case, each claim form contained an early conciliation number of a certificate of a colleague who had complied with early conciliation, the early conciliation number was a real number and was correctly transposed into the claim form, and each claimant had, in fact, complied with early conciliation; and that, while there might be something to be said for the rules requiring a separate number to be provided for each claimant, the tribunal was not required, or indeed permitted, to read words into the rules to achieve that result (post, paras 38, 40, 42–43, 46, 48).
(2) Dismissing the cross-appeal, that the obvious meaning of the word “cross-appeal” was an appeal that arose in response to an appeal, which was brought by a respondent to an appeal against the appellant; that rule 5 of the Employment Appeal Tribunal Rules 1993 provided that the respondents to an appeal were the parties, other than the appellant, to the proceedings before the employment tribunal; that, therefore, the claimants against whom the respondent employers sought to bring the cross-appeal were also respondents and there was no proper basis for a cross-appeal against the determination in relation to their claims; and that, given the conclusions on the appeal, the cross-appeal would have failed in any event (post, paras 23–26, 48).
Per curiam. While there is no mandatory requirement, it is good practice to set out all the early conciliation numbers for all claimants on a multiple claim form, as it will assist the employment tribunal and minimise the risk of any issue about early conciliation arising (post, para 47).
The following cases are referred to in the judgment:
Asda Stores Ltd v Brierley
Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/397/14 (unreported) 19 May 2015,
E.ON Control Solutions Ltd v Caspall [
FSHC Group Holdings Ltd v GLAS Trust Corpn Ltd
Sterling v United Learning Trust UKEAT/439/14 (unreported) 18 February 2015,
No additional cases were cited in argument.
APPEAL from an employment judge sitting at Birmingham
By a judgment sent to the parties on 8 June 2020, the employment judge rejected multiple claims of equal pay by Mrs M Clark and others against the respondents, Sainsbury’s Supermarkets Ltd and Lloyds Pharmacy Ltd, on the ground that their names did not appear on an early conciliation certificate the number of which was quoted on the multiple claim form, while permitting those claims to proceed where there was an early conciliation number on the claim form that appeared on an early conciliation certificate on which the name of the claimant also appeared. Those claimants whose claims were rejected appealed on the ground that the employment judge had erred in law in deciding that it was not sufficient if one certificate number was given on the claim form for any claimant bringing a claim on the claim form. The respondents cross-appealed against the decision to allow the claims of other claimants to proceed, on the ground that the employment judge had erred in failing to decide that it was necessary, in respect of each claimant, that a certificate number specific to that claimant appeared on the claim form.
The facts are stated in the judgment, post, paras 12–17.
Andrew Short KC and Saul Margo (instructed by
Dale Martin KC (instructed by
The court took time for consideration.
21 September 2022. JUDGE JAMES TAYLER handed down the following judgment.
Introduction1 There are two issues in this appeal. The first is how rule 10 of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”) applies when claims are brought by a number of prospective claimants on the same claim form. Rules 10 and 12 of the ET Rules ensure that most claims in which a prospective claimant, who is not exempt, has failed to undertake Acas early conciliation (“EC”) are weeded out before service of the claim form on the respondent.
2 The second issue is by whom, and against whom, a cross-appeal can be brought.
Early conciliation3 Litigation is to be avoided where possible. Reasonable settlement of claims is to be encouraged. Many litigants come to appreciate this with the benefit of hindsight. Even those who are successful are often not as successful as they wanted, may be subject to criticism, and can find that the costs of the litigation in terms of time, money and emotion makes the victory Pyrrhic. That said, litigation is sometimes unavoidable. Litigation may be necessary to establish individual rights and determine points of general legal principle. But litigation should be seen as a last resort, not a first port of call.
4 For a number of years, provisions have been in place to try and persuade parties to resolve their differences without recourse to litigation. That is the fundamental purpose of early conciliation. The substantive EC scheme adopts a relatively light touch. Individuals are required to do little more than contact Acas and obtain an EC certificate. They are not required to engage in conciliation at all if they do not wish to do so. They are taken to water, but not forced to drink.
5 By comparison, the gate keeping procedural rules are, in places, a little heavy-handed. Individuals who have fully complied with the substantive requirements of EC can find that because of an error in completing the claim form the claim must be rejected, sometimes in circumstances in which any resubmitted claim is likely to be out of time. That is why the rules have been somewhat relaxed by amendment. Nonetheless, if unambiguous mandatory provisions of the procedural scheme require rejection of the claim that outcome cannot be avoided, even if the application of the provisions may bring to an end a claim brought by a person who has complied with the substantive...
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Mrs M Clark and Others v 1) Sainsburys Supermarkets Ltd 2) Lloyds Pharmacy Ltd
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