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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Compass Group UK & Ireland Ltd v Morgan (Practice and Procedure: Preliminary issues) [2016] UKEAT 0060_16_2607 (26 July 2016) URL: https://www.bailii.org/uk/cases/UKEAT/2016/0060_16_2607.html Cite as: [2016] UKEAT 60_16_2607, [2016] IRLR 924, [2016] UKEAT 0060_16_2607, [2017] ICR 73 |
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Appeal No. UKEAT/0060/16/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On
26 July 2016
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
MR D BLEIMAN
MR P L C PAGLIARI
COMPASS
GROUP
UK
&
IRELAND
LTD APPELLANT
MRS
T MORGAN
RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Direct Public Access |
|
(of Counsel) Instructed by: Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB
|
SUMMARY
PRACTICE AND PROCEDURE - Preliminary issues
This appeal raises a question of procedure in relation to the early conciliation provisions introduced by the Enterprise and Regulatory Reform Act 2013, namely whether an early conciliation certificate obtained by a “prospective claimant” can cover future events. The Employment Judge held that it could, and on the facts of the present case, although the Claimant’s resignation underlying her constructive unfair dismissal complaint occurred after the early conciliation certificate was issued, the proceedings related to a sequence of events that were in issue between the parties at the time of the early conciliation process, and the Claimant had accordingly satisfied the early conciliation requirement in relation to her constructive unfair dismissal complaint.
The appeal fails. The words “relating to any matter” are ordinary English words that have their ordinary meaning. Parliament deliberately used flexible language capable of a broad meaning both by reference to the necessary link between the proceedings and any matter and by reference to the word “matter” itself. It is not useful to provide synonyms for the words used by Parliament. Provided that there are or were matters between the parties whose names and addresses were notified in the prescribed manner, and they are related to the proceedings instituted, that is sufficient to fulfil the requirements of section 18A(1) Employment Tribunals Act 1996.
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
1.
This appeal raises an important question of procedure in relation to the
early conciliation (“EC”) provisions introduced by Part II, section 7 of the Enterprise and Regulatory Reform Act 2013 (“ERRA”) namely whether an EC
certificate obtained by a prospective Claimant can cover future events. By a
Judgment promulgated with Reasons on 14 December 2015 Employment Judge Hyde
held that it could. Moreover, on the facts of the present case, although the
Claimant’s resignation underlying her constructive unfair dismissal complaint
occurred after the EC certificate was issued, the proceedings related to a
sequence of events that were in issue between the parties at the time of the EC
process, and accordingly she held that the Claimant satisfied the EC
requirements in relation to the constructive dismissal complaint. Compass
Group
UK
&
Ireland
Ltd appeal that decision as in error of law.
2. We refer to the parties as they were below. Mr Christopher Milsom of counsel appears on behalf of the Respondent and Mr Nigel Moore of counsel on behalf of the Claimant. We have been assisted by helpful, focused and cogent submissions from both counsel, for which we are grateful. This is the unanimous Judgment of the three of us, and all three of us have contributed to it.
3. It is helpful at the outset to identify the legal framework. The ERRA 2013 inserted section 18A into the Employment Tribunals Act 1996 (“ETA”). This provides:
“18A. Requirement to contact ACAS before instituting proceedings
(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).
(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.
(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.
(5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period.
(6) In subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.
(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;
cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;
cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.
(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).
(9) Where a conciliation officer acts under this section in a case where the prospective claimant has ceased to be employed by the employer and the proposed proceedings are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular -
(a) seek to promote the reinstatement or re-engagement of the prospective claimant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or
(b) where the prospective claimant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the prospective claimant.
(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);
(b) requiring ACAS to give a person any necessary assistance to comply with the requirement in subsection (1);
(c) for the extension of the period prescribed for the purposes of subsection (3);
(d) treating the requirement in
subsection (1)
as complied with, for the purposes of any provision extending the time limit
for instituting relevant proceedings, by a person who is relieved of that
requirement by
virtue
of subsection (7)(a).”
4. There are duties imposed on ACAS in relation to conciliation before institution of proceedings in the circumstances described by section 18B; including a power to seek to promote reinstatement or re-engagement of the prospective claimant in identical terms to that which arises under section 18A(9). Section 18C deals with conciliation after institution of proceedings. Under this section either party to proceedings can request the conciliation officer to endeavour to promote a settlement, and in a case where employment has ceased the conciliation officer may take the same steps that are identified in section 18A(9) under section 18C(2). The scheme of the legislation, accordingly, is to impose a mandatory requirement on a prospective claimant before issuing relevant proceedings, a defined term, to contact ACAS and provide ACAS with certain basic information to enable ACAS to explore the possibility of conciliation. Relevant proceedings are those listed in the ETA 1996 section 18(1) as amended.
5.
Apart from the initial obligation to contact ACAS, EC is, however, a
voluntary
process. There is no duty on either party to participate or to
continue to participate in the process. If either party does not wish to do
so, and in particular if the claimant does not wish to do so, ACAS issues an EC
certificate to the prospective claimant showing that compliance has been made
with the duty under section 18A(1). Subject to section 18A(7), the certificate
generally enables the prospective claimant to issue proceedings relating to any
matter that is a matter about which the prospective claimant has provided
prescribed information in the prescribed manner to ACAS.
6.
The power to make regulations provided by section 18A(11) has been
exercised by the Secretary of State. The regulations are the Employment Tribunals
(Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014.
In a Schedule to those Regulations there are Rules of Procedure. Rule 1
provides that a prospective claimant must present a completed EC form to ACAS
in accordance with Rule 2 or telephone ACAS in accordance with Rule 4. Rule 2
defines the prescribed information that must be provided by a prospective claimant
to ACAS. This is limited
to names and addresses of both prospective claimant
and prospective respondent (see Rule 2(2)). If the necessary information is
not contained in an EC form - whether sent by post or electronically - the form
may be rejected by ACAS, or, alternatively, ACAS may contact the prospective claimant
to provide the missing information (see Rule 2(3)). Where a prospective claimant
does not consent to the EC officer contacting the prospective respondent, the
officer must conclude that settlement is not possible and proceed then to issue
a certificate. Once the prospective claimant has contacted ACAS and provided
the prescribed information, ACAS sends the prescribed information to an EC
officer (see section 18A(2)). The conciliation officer is required during a
prescribed period to try to promote a settlement between the parties to the
proceedings, but if the officer concludes that a settlement is not possible or
the prescribed period expires without a settlement having been reached, the
officer is required to issue a certificate to that effect to the prospective claimant.
Attempts to promote a settlement may of course continue after the expiry of the
prescribed period (see section 18A(5)).
7.
The EC provisions have been considered in two recent cases by this
Appeal Tribunal. Neither side contends that either decision is determinative
of the issues with which we are obliged to grapple, but nevertheless some
important observations were made in those cases about the nature and purpose of
the EC provisions, as both parties have recognised. In Science Warehouse
Ltd v
Mills [
2016]
ICR 252 the claimant was permitted to amend an
existing discrimination claim to include a claim of
victimisation
in respect of
allegations of disciplinary misconduct the respondent said would have been
pursued against her had she not resigned. In that case, a Tribunal permitted
the amendment, recognising the requirement for an EC certificate but holding
that such a certificate is not a prerequisite of an amendment application. The
decision was challenged unsuccessfully by the respondent on the basis that the
amendment sought to add an entirely new claim that post-dated the ET1, and
accordingly the claimant was required to go back and invoke the EC procedure
again.
8.
HHJ Eady QC referred to the broad terminology in the EC scheme of
“matter” rather than “cause of action or claim” and held that the EC Rules of
Procedure did not provide for the formal setting out of each cause of action
for each claim separately. Its adoption of the expressions “any matter” and
“that matter” was of concepts that were, in her view,
broad. Moreover, she
emphasised that although it is mandatory to notify ACAS that a Tribunal claim
may be brought, the role of ACAS is simply to offer to attempt to resolve any
dispute at an early stage and no more. Either party may decline, and there is
no obligation whatever on the parties to engage with EC through ACAS. These
considerations led her to conclude that the application to amend was a matter
for the Employment Tribunal’s case management discretion, which had been
appropriately exercised in the circumstances.
9.
In Drake International Systems Ltd v
Blue Arrow Ltd [
2016]
ICR 445 Langstaff J reached similar conclusions, holding that the word “matter”
in section 18A(1) was capable of broad application. Different times, dates and
different people all might be sufficiently linked to come within its scope. He
concluded that the applicable principle was that a matter should not be brought
to litigation without consideration of EC being formally certified but that
there was no obligation to engage in such conciliation. Both he and HHJ Eady QC
expressed the
view
that it was part of Parliament’s intention in enacting the
EC scheme and in adopting the broad terminology referred to that the Rules of
Procedure would operate in a flexible and pragmatic way, avoiding the sort of
disputes and satellite litigation that was spawned by the dispute resolution
procedures enacted under the Employment Act 2002.
Factual background
10.
Against that background we turn to consider the facts. These are yet to
be determined, and nothing that we say should be construed as making any
finding of fact. The Claimant was employed by Sodexo Services Group
Ltd with
effect from 29 September 2008. She was transferred pursuant to the Transfer
of Undertakings (Protection of Employment) Regulations 2006 to the
Respondent. Her case is that she has an acute anxiety disorder and this was
made known to the Respondent. She alleges that in September 2014 she was
instructed to work at an alternative location and in a less senior capacity.
She submitted a grievance on 13 October 2014 complaining about these matters.
She instructed solicitors in November 2014, and there is no dispute that they
acted for her at all material stages thereafter. On 14 November 2014 she
entered into EC, albeit by reference then to the wrong legal entity, though
that was corrected on 20 November 2014. A certificate of completion of the EC
process (referred to as the EC certificate) was issued on 3 January 2015. Two
months later, on 18 March 2015, the Claimant resigned from her employment. She
lodged an ET1 on 20 March 2015 alleging, among other things, an unlawful
failure to make reasonable adjustments and constructive unfair dismissal.
11.
The Respondent’s ET3, presented on 22 April 2015, relied on a
jurisdictional bar by virtue
of section 18A ETA 1996 as regards the
complaint of constructive unfair dismissal. The Respondent submitted that the
constructive dismissal claim was not properly instituted because the
requirement to undergo EC had not and could not have been fulfilled since
dismissal had not yet occurred at the time of conciliation. That meant that it
should have been treated as having not been presented at all. It argued that a
chronological approach to the construction of the EC legislation and in
particular section 18A(1) should be taken in the sense that prospective claimants
ought not to be able to raise in their claim forms any cause of action that had
not accrued at the date of notification to ACAS. Any cause of action occurring
after the date of notification to ACAS, even where it relates to facts
occurring during the EC process itself, was said not legitimately to be capable
of being pursued without first notifying ACAS about it.
12. That jurisdiction question was determined at a Preliminary Hearing against the Respondent and in favour of the Claimant in the Judgment of Employment Judge Hyde that is challenged on this appeal. Having set out at length the submissions made by the parties, the Judge accepted the Claimant’s submissions on this issue, and at paragraphs 67 to 74 she set out her reasons for doing so. We do not repeat those here.
The appeal
13. There is one ground of appeal advanced by Mr Milsom. The Respondent’s position, he accepts, has shifted from that which was adopted before the Tribunal. Mr Milsom now argues that the cut-off date beyond which the EC certificate does not normally extend is the issue of the EC certificate rather than the date of notification to ACAS. On behalf of the Claimant, Mr Moore contends, on the other hand, that there is no cut-off at all and that in any case it is a question of fact to be determined by a tribunal if necessary, whether proceedings are related to matters in existence when the EC process took place.
14. Central to Mr Milsom’s challenge are two arguments. First, the legislation is to be construed so as to implement rather than defeat its purpose, which is to facilitate early resolution of disputes. He relies on the explanatory notes that set the scene and provide context for these provisions and demonstrate, he submits, that Parliament intended the provisions to facilitate disputes without the need for litigation. He contends that a proper assessment of the operation of the EC legislation demonstrates that the EC process and certificate can only apply in relation to events and allegations that pre-date it. To find otherwise would enable claimants to bring claims about which EC would not necessarily have been conducted. That would defeat the objective of the process, and accordingly an EC certificate cannot, he submits, cover future events. Secondly, he submits that this is a bright line that creates consistency and certainty, which is consistent with a pragmatic and simple EC scheme.
15.
Turning to section 18A(1) itself, he submits that the words “in relation
to” are ambiguous because they carry two possible meanings: first, the meaning
for which he contends, namely “concerning or about”; secondly, the meaning for
which the Claimant contends, namely “connected with”. The latter, he submits,
is looser and inconsistent with the purpose of the EC scheme. So far as the
word “matter” is concerned, he contends that since EC must be conducted in
relation to a matter before relevant proceedings are commenced, “matter” must
refer to facts or events, whether actual or alleged, but is limited
to those
which exist or have occurred by the time of commencement of the EC process.
His focus on chronology is said to have the benefit of “knowability” and
certainty by avoiding the potential threat to privilege that would follow if
the certificate was said to cover potential, anticipated events by being
capable of objective proof and because the dates would then speak for
themselves. In writing, Mr Milsom submitted that an EC certificate cannot and
does not cover matters that are subsequent to the date of its issue. If there
is a matter that is subsequent, further conciliation is required.
16. Mr Milsom’s bright line approach shifted in the course of argument. He accepts today that if proceedings are issued relating to a matter that was in contemplation at the time of conciliation, even if it had not occurred, that could be encompassed by an earlier EC certificate. He gave an example of a series of deductions from pay and accepted that deductions on either side of the so-called guillotine of the EC certificate issue date could be pursued in subsequent proceedings as covered by that earlier EC certificate. In his submission, provided the character of the conduct is the same and has an element of repetition about it, it could be covered. He submits, however, that dismissal is obviously a matter that is different in kind and cannot conceivably be part of the subject matter of EC certificated proceedings where it takes place after a certificate is issued. He relies for support for this submission on section 18A(9) and the power of a conciliation officer to attempt to promote reinstatement or re-engagement of an individual. He submits this differentiates a situation in which dismissal results and a situation in which the employment relationship is ongoing. He recognises, realistically, that this may result in a factual examination of the character of the conduct to determine whether it is the same or sufficiently the same and whether it has a sufficient element of repetition about it, and accepts that neither his nor Mr Moore’s construction of these provisions is ideal. He submits that his construction, however, has the merit of avoiding factual disputes and lends certainty to the process consistent with achieving its purpose.
17. Having considered carefully the submissions advanced by Mr Milsom, we have come to the conclusion that we prefer the arguments advanced by Mr Moore to those of Mr Milsom, clearly and cogently though Mr Milsom has expressed them. We recognise that there appears to be an inconsistency between the explanatory notes and the EC provisions themselves and suspect that the explanatory notes may have contemplated a more complex scheme than the one that has emerged and been approved by Parliament. We accept that the explanatory notes set the contextual scene, but that is all. They do not reflect, and we do not treat them as reflecting, the will of Parliament. That must be identified by the words enacted in the relevant provisions themselves.
18.
We, like the Appeal Tribunal in the Science and Drake
cases, consider it significant that Parliament used the word “matter” in
section 18A(1) rather than “cause of action” or “claim” and that the prescribed
information required to be provided by a prospective claimant to ACAS to fulfil
the obligations under the scheme is so very
limited.
The word “matter” is
broad and, as Langstaff J observed, may encompass not just the precise facts of
a claim that bring it within a cause of action but also other events at
different times and/or dates and/or involving different people. There is no
obligation, as we have already indicated, when notifying ACAS to identify the
matter itself nor the nature of any actual or prospective dispute, still less
to provide the factual details or any background to that dispute. The only
information required to be provided by a prospective claimant consists of names
and addresses of the prospective parties.
19.
It is also significant, in our judgment, that the process of
conciliation is an entirely voluntary
and confidential one. Once the
prospective claimant has provided ACAS with the prescribed information, there
is no requirement whatever for him or her to identify to ACAS, or indeed the
prospective respondent, the subject matter or issues in dispute and no
obligation whatever to enter into any discussions, still less meaningful ones,
with the prospective respondent. Although it is hoped that this will follow,
there is no obligation to do so. The prescribed information need not even be
complete and correct. What the process does (as HHJ Eady QC explained) is to
build in a structured opportunity for parties to take advantage of ACAS
conciliation if they choose to do so before a matter reaches litigation.
20.
Against that background, the question of construction raised by Mr Milsom
is whether there is any temporal or other limit
on the applicability of an EC
certificate in the context of “relevant proceedings relating to any matter”
that are commenced in relation to a cause of action that only crystallises
after the EC process is complete. The question, accordingly, is: what is meant
by “relating to any matter”? In our judgment, these are ordinary English words
that have their ordinary meaning. Parliament has deliberately used flexible
language capable of a broad meaning both by reference to the necessary link
between the proceedings and the matter and by reference to the word “matter”
itself. We do not consider it useful to provide synonyms for the words used by
Parliament. Provided that there are or were matters between the parties whose
names and addresses were notified in the prescribed manner and they are related
to the proceedings instituted, that is sufficient to fulfil the requirements of
section 18A(1).
21.
Section 18A could have been enacted so as to require the matters
complained of in subsequent proceedings to pre-date any relevant EC
certificate, but Parliament chose not to do so. Equally, Parliament could have
provided for a time limit
on the
validity
of an EC certificate but did not do
that either. Nor does the legislation provide that an EC certificate cannot
pre-date causes of action complained about subsequently as, again, Parliament
could have done. Indeed, there is nothing express in the legislation that
provides any temporal or other
limitation
on the use of an EC certificate in
relation to relevant proceedings, causes of actions or claims. Rather, the legislation
is, as we have said, deliberately defined by reference to a broader term than
“cause of action” or “claim”. We see nothing in the operation of the
legislation that requires or entails a conclusion that the process and
certificate only apply to events and allegations pre-dating the commencement of
the process or the issue of the certificate or that requires any matter to be
defined by reference only to the actual or alleged state of affairs or facts as
at the date when EC commenced or the certificate is issued. We do not regard
the fact that claimants might bring claims about which EC has not been
conducted as significant in circumstances where there is no obligation to
undertake any EC at all and certainly no obligation to undertake EC in relation
to any particular claim. The only obligation on the prospective claimant is to
obtain formal recognition that ACAS has been relevantly notified before any
proceedings are instituted, and the fact that the prospective respondent has no
right to engage in pre-claim conciliation at all and any contact with the
prospective respondent is entirely conditional upon the claimant’s consent is
consistent with this
view.
22.
The Respondent’s shifting case, which now accepts that if a matter is in
contemplation but has not occurred prior to the issue of the certificate it can
be encompassed within the EC certificate provided it does not result in
dismissal, has no underlying logic to it, in our judgment, and does not
obviously emerge from the legislation itself. We do not consider that there is
a difference in kind between a cause of action involving dismissal and other
causes of action that do not result in dismissal and agree with Mr Moore that
this is a red herring. In practice, it is easy to imagine a situation in which
an individual contacts ACAS complaining about a poor relationship that is
deteriorating or developing in a particular and unacceptable way. The
individual might have in his or her contemplation a belief that he is about to
be dismissed, or that possibility might not yet have registered. Circumstances
might exist where an individual’s relationship with his or her employer is
breaking down but has not reached the point at which he or she feels bound to
resign. We cannot see why it makes all the difference in such a situation that
the relationship has come to an end. In either case (whether a case involving
continuing employment or one involving a resignation) the underlying
deteriorating employment relationship based on bullying, discrimination,
victimisation
or whatever other cause can constitute matters between the
parties whose names have been notified to ACAS, and the fact of employment subsequently
terminating is simply an additional factual matter that either is or is not
related to those earlier matters.
23.
Moreover, the fact that there is an ongoing power in the EC officer to
endeavour to promote the reinstatement or re-engagement of a complainant by the
employer in section 18C(2) means that no safe conclusion that there is a
temporal limit
on EC certificates can be drawn based on the mere existence of
that power in section 18A(9). Ultimately, we can see no reason artificially to
restrict the scope of the phrase “relating to any matter”. That does not mean
that an EC certificate affords a prospective claimant a free pass to bring
proceedings about any unrelated matter; it does not. In our judgment, it will
be a question of fact and degree in every case where there is a challenge (and
we hope and anticipate that there will be
very
few such challenges) to be
determined by the good common sense of tribunals whether proceedings instituted
by an individual are proceedings relating to any matter in respect of which the
individual has provided the requisite information to ACAS. In circumstances
where the only requirement is to make contact with ACAS but do nothing more and
the information required to be provided is
limited
as it is, we do not consider
that this construction defeats the object of the EC process at all.
24.
Mr Milsom’s objection that this will require a factual investigation
with the potential to involve EC officers giving evidence about what was and
was not complained about is no real objection at all in circumstances where his
own construction carries with it that possibility in any event. In our view,
his forecast of EC officers up and down the country giving evidence in such
cases is more imagined than real. Save in the most exceptional case, we see no
need for EC officers to give evidence at all and agree that this would be
undesirable. Here, as this Tribunal’s Judgment demonstrates, the Employment
Judge had no difficulty in determining the facts by reference to witness
statements without cross-examination at all and was able to reach a conclusion
as to whether the proceedings related to relevant matters or not within the
meaning of section 18A(1).
25.
Moreover, we envisage that the fact of certification will in most cases
be sufficient to demonstrate compliance with section 18A(1). In most cases,
the parties will know what facts or matters were in issue between them.
Respondents will need some good and compelling basis for challenging fulfilment
with the section 18A(1) requirement. Where such a challenge is made, it will
be for a tribunal to determine these questions of fact and degree. That these
are questions of fact and degree makes it less likely, in our collective view
based on past experience, that satellite litigation of this kind will arise than
would be the case were a bright line construction, such as that proposed by Mr Milsom,
to be adopted.
Application to the facts of this case
26.
Having dealt with the proper construction of the section in question, we
turn to consider whether in this case the proceedings for unfair dismissal
instituted by the Claimant in respect of a resignation that occurred after EC
had been completed are proceedings relating to matters in respect of which she had
provided ACAS with the prescribed information in the prescribed manner.
Employment Judge Hyde approached this case on the basis that whatever the
limits of a tribunal’s jurisdiction in relation to section 18A(1) the facts of
this case fall clearly within the parameters of that section. The Claimant’s
claim form relies on all matters raised as breaches of the implied term of
mutual trust and confidence that formed part of the matters notified to ACAS as
part of EC. In addition, she complains about the failure to deal with her
grievance appropriately and ultimately about dismissal. The failure to deal
with her grievance appropriately and her constructive dismissal are the only
matters that do not pre-date the institution of the EC process. In the circumstances,
and in light of the particular facts, the Judge was satisfied that there was a
connection between the factual matters complained about in the claim form and
matters that were in dispute at the time of the EC process. The fact that the
Claimant’s resignation occurred afterwards did not undermine that conclusion in
circumstances where there was, the Judge held, no requirement to notify a claim
or cause of action.
27. Those conclusions were conclusions to which the Employment Tribunal was entitled to come in all the circumstances and moreover, they are conclusions with which we agree. We can detect no error of law in relation to her decision, and, in those circumstances, this appeal fails and is dismissed.