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It is a mandatory requirement under section 18A of the Employment Tribunals Act 1996 that, in order to initiate a claim, you must complete ACAS early conciliation. This is a strict precondition. Without an ACAS EC certificate and the number on it to insert in your ET1 form, you will be unable to submit your claim. The tribunal will have no jurisdiction to hear the claim and will reject it. The omission is fatal. And early conciliation must be done within applicable time limits.
A Court of Appeal case has clarified, however, that commencing a claim and subsequently amending a claim are two different exercises and that it is not necessary to undergo the EC process a second time when amending a claim. The mandatory requirement was already met the first time the claim was submitted.
In Abel Estate Agent Ltd & Ors v Elizabeth Reynolds [2025] EWCA Civ 1357, the Court of Appeal made a distinction between instituting proceedings (commencing a claim) and amending a claim. Once a claim has been validly presented, there is no bar to amending a claim if you do not have another ACAS EC certificate, even in a case such as this, where there was no certificate at all. Be aware, however, that a tribunal does have a discretion to refuse an amendment application.
The claimant brought claims for whistleblowing dismissal and whistleblowing detriments. The claim for whistleblowing dismissal was exempt from early conciliation because it was accompanied by an application for interim relief. An interim relief application is exempt from early conciliation if the application is for unfair dismissal only. If you are also bringing discrimination claims, you will need to do Acas early conciliation.
The whistleblowing detriments claim was not exempt from early conciliation. A first instance tribunal said that it could not hear the detriments claim because the requirement under section 18A had not been met. The claimant appealed to the EAT and then again to the Court of Appeal when the EAT appeal failed.
The Court of Appeal held that the tribunal was entitled to allow the claimant to amend her whistleblowing dismissal claim to add the detriments claim without having undergone early conciliation, and the claim was able to proceed.
The decision confirms that Acas early conciliation is required for instituting proceedings, but does not bar amendments to existing claims, even where there is no Acas certificate at all.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
