A recent case in the Employment Appeal Tribunal ("EAT"), Compass Group UK & Ireland Ltd v Morgan UKEAT 0060/16, shed some light on a previously grey area in relation to claims of constructive dismissal. It was asked to consider whether a claim of constructive dismissal was validly accepted by an employment tribunal in circumstances where the employee resigned after Acas had issued a certificate at the conclusion of the early conciliation process. When the employee approached Acas it was solely in relation to her concerns as to how her employer was treating her; she resigned at a later date prior to submitting the claim.
Under section 18A of the Employment Tribunals Act 1996 prospective claimants must follow the early conciliation ("EC") procedure prior to commencing proceedings. In October 2014 Mrs Morgan had filed a grievance with her employers Compass Group PLC ("Compass"), who had failed to make the necessary adjustments relating to her disability. By November she had registered a potential claim with Acas under the EC procedure. Acas issued an EC certificate in January 2015. In March Mrs Morgan resigned and filled her ET1 citing breach of obligation to make reasonable adjustments in relation to a disability and unfair constructive dismissal. Compass challenged the acceptance of the ET1 as the claim for unfair constructive dismissal had not be considered during the EC procedure and therefore a new EC procedure was needed.
At the preliminary hearing, the employment judge rejected the argument of Compass that prospective claimants should not be able to raise in their claim form any cause of action that had not occurred at the date of notification to Acas. Compass appealed to the EAT against this decision. The EAT unanimously rejected the appeal. The EAT held that there was nothing in the operation of the legislation to limit the scope of a particular EC certificate to events and allegations pre-dating the commencement or conclusion of the EC process. They took the view that there may be a deteriorating situation and constructive dismissal may simply be an additional factual matter that is related to earlier events.
The decision of the EAT marks an important jurisdictional question which had previously raised confusion. In certain situations it is necessary for the employee to register the claim with Acas while in employment, (to avoid limitation periods) prior to further developments which could crystalize into a potential claim for constructive dismissal. It is worth noting that the EAT didn't give claimants the ability to bring additional proceedings about any unrelated matter and that the facts and allegations must be sufficiently connected in order to be added to the claim.