Before lodging a claim in the employment tribunal, claimants have to inform ACAS under the early conciliation (EC) procedure and be issued with an EC certificate, which is given a unique reference number. That number must then be included on the employment tribunal claim form (ET1). In Clark and ors v Sainsbury's Supermarkets Ltd and anor, the Court of Appeal held that where there are multiple claimants, the rules allowed them to provide the EC certificate number of just one of the claimants.
Basic facts
The claimants started equal pay claims in 2015 with comparators in a range of different roles, using multiple claim forms. All of them complied with their obligations under EC.
At that time, however, ACAS adopted a different approach to EC certificate numbers in multi claimant cases. In some instances, they provided a certificate with a single multiple EC number (an “M” number); in another they issued a certificate with an M number and an individual EC number (an “R” number) for each of the claimants in a schedule to the EC certificate; while in others they issued an EC certificate with an M number and an R number for just one of the prospective claimants that appeared on the schedule to the EC certificate.
Although the solicitors representing the claimants also adopted different approaches, each claim form had one EC number in the appropriate box. The claims were subsequently accepted as having complied with the rules when they were received at the tribunal office.
It was not until the fifth preliminary hearing in 2020 that the employers argued that the forms did not comply with Rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
Relevant law
Rule 10(1)(b) states that a tribunal must reject a claim if it does not contain “each” claimant’s name and address and “each” respondent’s name and address.
Rule 10(1)(c) states that a claim will be rejected if it does not contain “an” EC number.
Where a claim is rejected under Rule 10 it must be referred to an employment judge under Rule 12.
Tribunal and EAT decisions
The tribunal judge allowed all the claims which contained an EC number, or numbers, on the claim form where the claimants name was also included on an EC certificate. However, it rejected the claims of those claimants who included an EC certificate number on the claim form but whose name was not included on the EC certificate.
The claimants appealed on the basis that only one EC certificate number is needed on a multiple claim form for any claimant who brings a claim on that form, as Rule 10 makes clear. The EAT (see LELR 796) agreed, holding that in a multiple claim a claims form just needs to contain “an” EC number of an EC certificate on which the name of one of the prospective claimants appeared. All those clams that had been rejected were then reinstated.
Sainsbury’s appealed, arguing that the purpose of the legislation would be undermined if it was only necessary to include one EC certificate number in a multiple claim. Consequently, on a natural reading, Rule 10 should be read as though an EC number should be provided “in respect of each claimant”.
Decision of Court of Appeal
The Court of Appeal was, however, not convinced by that argument. Instead, it agreed with the EAT’s interpretation of Rule 10 that while each claim form must contain the name and address of “each” claimant and “each” respondent it was sufficient to contain the number of “an” EC certificate. This was in accordance with the principle in Software Box v Gannon that if the rules are capable of being read so as to provide justice, then that interpretation is to be preferred. In this case, to interpret the rules otherwise would prevent some claimants from pursuing their claims even though an EC certificate relating to the claim was on the claim form.
The court, therefore, confirmed that in a multiple claim the ET1 is valid so long as it contains one correct EC number relating to one of the claimants included on the ET1 form.