Sainsbury's Supermarkets Ltd v Maria Clark and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lady Justice Asplin,Lord Justice Nugee |
| Judgment Date | 06 April 2023 |
| Neutral Citation | [2023] EWCA Civ 386 |
| Docket Number | Case No: CA-2022-001965 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 386
Lord Justice Bean
Lady Justice Asplin
and
Lord Justice Nugee
Case No: CA-2022-001965
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ JAMES TAYLER
EA-2020-000620-JOJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Julian Milford KC (instructed by Womble Bond Dickinson LLP) for the Appellant company
Andrew Short KC and Saul Margo (instructed by Leigh Day) for the Respondent employees
Hearing date: 28 February 2023
Approved Judgment
This judgment was handed down remotely at 09.00am on 06 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included Sainsbury's, Asda, Tesco, and other well-known retailers. So far none of these has reached a trial on the merits. The claims have generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The years since the claims were launched have been taken up with a number of preliminary issues, including at least three cases in this court all reported under the name Asda Stores Ltd v Brierley: [2016] EWCA Civ 566; [2019] EWCA Civ 8 and [2019] EWCA Civ 544.
In the preliminary issue which is the subject of this appeal Sainsbury's argue that the employment tribunal (“ET”) should have rejected large numbers of these claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service (“ACAS”) relating to early conciliation (“EC”) of their claims. It was argued before Employment Judge Camp in the Birmingham Employment Tribunal in March 2020 that a total of 700 of the 865 claims before him should be struck out on this basis. He upheld the contention in respect of only some of these, referred to by him as the “category 4 claimants”. Judge Tayler, sitting in the Employment Appeal Tribunal (“EAT”) allowed the claimant's appeal and restored their claims. With permission granted by Lewison LJ Sainsbury's seek to restore the order of the ET.
Before plunging into the details of the relevant statutes and regulations I think it is worthwhile to stand back and look at the broad picture. Not even the considerable forensic skills of Julian Milford KC could disguise the fact that these are highly technical applications lacking any substantive merit. When industrial tribunals were established more than half a century ago the purpose of Parliament was to create a speedy and informal system free from technicalities. It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claims. Nevertheless, if the Appellant is right, an artificial barrier has indeed been placed in the way of these claims. It should be emphasised that there is no suggestion that any of these Claimants failed to make the necessary reference to ACAS before the claim was issued, nor that any of them failed to obtain a certificate by ACAS demonstrating that such a reference had been made. The complaint is no more and no less than that the ET claim form did not give the appropriate certificate number.
The law on early conciliation (EC)
The requirements to go through EC, for ACAS to issue an EC certificate, and for a claimant who is not exempt to have a certificate before presenting a claim form, are contained in s 18A of the Employment Tribunals Act 1996, the relevant parts of which are as follows:
“(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7). ….
(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.
(4) If –
(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or
(b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. …
(7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases.
The cases that may be prescribed include (in particular) cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter; ….…
(8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).
(10) In subsections (1) to (7) “prescribed” means prescribed in employment tribunal procedure regulations.
(11) The Secretary of State may by employment tribunal procedure regulations make such further provision as appears to the Secretary of State to be necessary or expedient with respect to the conciliation process provided for by subsections (1) to (8).
(12) Employment tribunal procedure regulations may (in particular) make provision –
(a) authorising the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4); …”
Regulations made under s 18A include the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the 2014 Regulations”), the relevant parts of which are:
“2. In these Regulations and in the Schedule – … “early conciliation certificate” means the certificate prescribed by the Secretary of State in accordance with regulation 4(b) [sic];
3. (1) A person (“A”) may institute relevant proceedings without complying with the requirement for early conciliation where –
(a) another person (“B”) has complied with that requirement in relation to the same dispute and A wishes to institute proceedings on the same claim form as B;
4. (1) The Secretary of State may prescribe – …
(b) a certificate to be issued by ACAS if rule 7 of the Schedule applies. ….
……………………….
Schedule
The Early Conciliation Rules of Procedure ….
………………
7 (1) If at any point during the period for early conciliation, or during any extension of that period, the conciliation officer concludes that a settlement of a dispute, or part of it, is not possible, ACAS must issue an early conciliation certificate.
(2) If the period for early conciliation, including any extension of that period, expires without a settlement having been reached, ACAS must issue an early conciliation certificate.
8. An early conciliation certificate must contain—
(a) the name and address of the prospective claimant; …
(d) the unique reference number given by ACAS to the early conciliation certificate; …”
The Employment Tribunals Rules of Procedure, as they were in force at the time of issue of these proceedings, provided so far as relevant:
“1. (1) In these Rules—
“claim” means any proceedings before an Employment Tribunal making a complaint;
“claimant” means the person bringing the claim;
“complaint” means anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal;
“early conciliation certificate” means a certificate issued by ACAS in accordance with the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations [2014];
“early conciliation exemption” means an exemption contained in regulation 3(1) of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014;
“early conciliation number” means the unique reference number which appears on an early conciliation certificate;
2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules.
…
6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following—
(a) waiving or varying the requirement;
(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;
(c) barring or restricting a party's participation in the proceedings;
(d) awarding costs in accordance with rules 74 to 84.
…
10. (1) The Tribunal shall reject a claim if – …
(b) it does not contain all of the following information –
(i) each claimant's name;
(ii) each claimant's address;
(iii) each respondent's name;
(iv) each respondent's address; or
(c) it does not contain one of the following –
(i) an early conciliation number;
(ii) confirmation that the claim does not institute any relevant proceedings; or
(iii) confirmation that one of the early conciliation exemptions applies.
(2) The form shall be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for a reconsideration of the rejection.
…………………………………
12. (1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part...
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