Tribunal jurisdiction provisions clarified at Court of Appeal

It has been a longstanding requirement that, save for in limited circumstances, prospective Employment Tribunal (ET) claimants must obtain an ACAS early conciliation (EC) certificate prior to bringing a claim in order for the ET to have jurisdiction to hear that claim.

A recent case has drawn attention to one of the exceptions to that requirement and a possible way around the requirement. 

Brief facts

One of the exceptions to having to obtain an EC certificate first is when a claimant is bringing a claim for automatic unfair dismissal in which they are seeking interim relief. In those circumstances, the ET has jurisdiction to hear the claim even though the Claimant has not obtained an EC certificate.  

In the case of Reynolds v Abel Estate Agent Ltd and others [2025] EWCA Civ 1357, Ms Reynolds (the Claimant) had not obtained an EC certificate before bringing her ET claim. In her claim form, she brought a claim of automatic unfair dismissal for which she sought interim relief and so not having a EC certificate did not matter. However, she also claimed, in the same claim form, that she had been subjected to a detriment as a result of blowing-the-whistle, a claim for which an EC certificate must be obtained first for the ET to have jurisdiction to hear it. 

The ET did not spot that the Claimant did not have an EC certificate when she submitted her claim form and so, rather than rejecting her whistleblowing detriment claim, it was accepted along with her automatic unfair dismissal claim. A case management hearing was listed to take place. 

At the case management hearing, the Respondents argued that the Claimant’s whistleblowing detriment claim should have been rejected as the Claimant had not obtained an EC certificate first. The ET agreed and rejected that claim. However, it also then allowed the Claimant to amend her remaining claim, the automatic unfair dismissal one, to include the whistleblowing detriment claim it had just rejected.

The Respondents appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT found that the Claimant not having an EC certificate did not preclude the ET from having jurisdiction to hear the whistleblowing detriment claim. It found that, because the claim had passed through the gateway stage, it was too late to treat the Claimant’s failure to obtain an EC certificate as depriving the ET of jurisdiction. The available option for the ET at the case management hearing was to strike out the whistleblowing detriment claim as a case management issue for non-compliance with the ET rules. However, whilst the claim could be struck out by the ET, the EAT did not think this was a justifiable response to the circumstances. 

The Respondents appealed to the Court of Appeal (CoA) on two issues:

• whether the Claimant’s failure to obtain an EC certificate meant that the ET was obliged to dismiss the whistleblowing detriment claim for want of jurisdiction; and
• if this was the case, whether the whistleblowing detriment claim could be re-instated by amendment as the ET had allowed.  

CoA decision

The CoA found that if a claimant fails to obtain an EC certificate in respect of a claim for which one is required, a bar to the ET having jurisdiction is created and so the Claimant’s whistleblowing detriment claim should therefore have been dismissed. However, the CoA also found that whether a claimant has an EC certificate or not does not apply to amendments to existing claims as the requirement to have an EC certificate only applies when brin ging a new claim on a separate claim form.

It went on to find that it had been proper for the ET to grant the Claimant’s amendment in the circumstances, considering the nature of the amendment, the timing and manner of the application, the prejudice to the Respondents and the balance of injustice and hardship. The whistleblowing detriment claim was therefore permitted to proceed without an EC certificate being obtained first.

Conclusion 

The CoA’s judgment provides welcome clarification of the impact of a failing to obtain an EC certificate – it is a jurisdictional requirement. Now, it will remain a jurisdictional requirement where EC non-compliance is discovered late. In principle, this benefits respondents. 

However, the ET not having jurisdiction due to an EC certificate not being obtained might not be the end of the claim. A claimant can circumvent the requirement by making an application to amend an existing claim to include the claim for which they have failed to obtain an EC certificate.

This does not, though, give claimants a free pass to simply not obtain EC certificates as their application to amend their existing claim must still be granted by the ET. Any application will be considered on its merits with the CoA finding that the fact that the amendment, if granted, would avoid the requirement to obtain an EC certificate may be a relevant factor when the ET decides the application albeit it cannot be determinative.