Sainsbury's Supermarkets Ltd v Clark & Ors [2023] EWCA Civ 386

Appeal by employers that the ET should have rejected large numbers of multiple equal pay claims on the grounds that the claim forms did not contain the reference number of an ACAS early conciliation certificate.

At the ET, Sainsbury’s had argued that 700 of 865 claims should be struck out because the ET1’s did not set out the early conciliation certificate. The employment judge agreed with this argument for only a limited number of claims. At the EAT, Judge Tayler restored those claims. Sainsbury’s were allowed to appeal on the sole ground that the judge erred in law * “in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013 as having the meaning and effect that, where multiple claimants make employment tribunal claims on the same claim form and such claims are ones to which a requirement to engage in ACAS Early Conciliation applies, it is sufficient for the claim form to contain a single ACAS early conciliation number which need only relate to one of the claimants on the form."*

In this judgment, Bean reviews the rules around early conciliation and the ET1, and summarises the judgments in the lower courts, before concluding at [36] that Judge Tayler’s construction of Rule 10 is correct.

“While a claim form must contain the name and address of each claimant and each respondent, it is sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared”

However he also makes a more fundamental point that the claims had not been rejected, which is the language of Rule 10 and 12, so it is not in his view “open to a respondent to argue at a later stage that the claim should have been rejected”. He ends at [51] stating:

“The legislative purpose of s 18A of the 1996 Act was to require claimants to go to ACAS and to have an EC certificate from ACAS (unless exempt from doing so) before presenting a claim to an ET in order to be able to prove, if the issue arises, that they have done so. I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start. If the claim is rejected in its earliest stages under Rule 10 or 12 then the claimant may seek rectification or reconsideration. If it is not, then the time for rejection of the claim has passed. The respondent may instead apply to have the claim dismissed under rule 27 or struck out under rule 37, with the tribunal having the power to waive errors such as the one relied on in the present case under Rule 6.”

Published: 13/04/2023 15:03

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