G Joy and Others v Felixstowe Dock and Railway Company: 3311660/2023 and Others
JUDGMENT
[1]The claimants have not complied with the requirement to contact ACAS before instituting proceedings (s18A Employment Tribunals Act 1996) and the claims are therefore dismissed because the Tribunal does not have jurisdiction to determine them.REASONS
[1]The claimants sought to bring a claim that the respondent failed to allow time off for trade union duties as permitted under s170 Trade Union and Labour Relations (Consolidation) Act 1992.[2]The three claims were filed as a multiple claim on 13 October 2023. Claim 3311660/2023, brought by Gary Joy, is the lead case. The early conciliation (EC) certificate relied upon was issued to Gary Joy on 21 July 2023 when a conciliation period commencing on 12 July 2023 ended. The respondent’s position is that the certificate relied upon was issued in connection with a separate matter to the one which is the subject of these three claims and cannot be relied upon for the purposes of demonstrating that the claimants have complied with s18A Employment Tribunals Act 1996.[3]At a hearing on 10 May 2024 EJ Freshwater ordered that the matter of the validity of the EC certificate in relation to these proceedings be considered at a preliminary hearing, listed for today.The Hearing
[4]The parties filed a joint bundle of 56 pages. Ms Barsam, counsel for the respondent, filed a skeleton argument and an authority. The bundle contained a witness statement from a witness for the respondent. The witness’s evidence was not contested by the claimants and for this reason the witness did not attend today. Both parties’ counsel made submissions, which I have referred to in the reasons section below, and I gave oral judgment.The Law
[5]Employment Tribunals Act 1996 s. 18A Requirement to contact ACAS before instituting proceedings(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7).(2) … Facts[6]In June 2023 Miles Hubbard of the Unite trade union notified the respondent that the union intended to seek the permission of its members to commence a claim for unlawful deduction of wages.[7]On 12 July 2023 Mr Hubbard contacted ACAS to commence EC. As evidenced by a communication from ACAS to the respondent the following day, the conciliation concerned the matter of unlawful deduction of wages. Conciliation was commenced in the name of Gary Joy.[8]At 16:37 on 12 July 2023 Mr Hubbard received telephone advice from the union’s solicitors about four union members who had been refused time off to attend a Unite conference. One of these was Gary Joy.[9]I find that the commencement of EC on 12 July 2023 was not connected to the advice about time off for trade union activities provided by the solicitor on that day and the fact that the events occurred on the same date is a coincidence. There is an assertion by the claimant’s solicitor in the letter dated 5 June 2024 that ACAS was contacted after the advice but there was no evidence to substantiate this. Even had such evidence been provided this would not have been conclusive evidence of a connection.[10]Time off for union activities was not raised in EC. The only matter raised was unpaid wages. This is evident from the communications from ACAS, the recollection of Mr Brown of the respondent to whom the ACAS query was directed and the recollections of the ACAS conciliator provided to Mr Brown, all of which evidence was contained in the hearing bundle.[11]The subject matter of the EC that took place between 12 and 21 July 2023 was a claim that where employees were not paid for the time it took them to reach their workstations after clocking in, this was an unlawful deduction from wages. The subject matter of the claims 3311660/2023, 3311661/2023 and 3311662/2023 is that employees were refused unpaid leave to attend a trade union conference. There is no factual or causal connection between the two matters other than that Gary Joy was an employee affected by both. In so far as the claimants suggest that the matters were connected because they were both work place management issues, I do not accept that as evidence that they were connected. Decision and Reasons[12]The question for the tribunal is whether the claimants have complied with the duty to conciliate set out in s18A(1) Employment Tribunals Act 1996 and in particular whether, because an EC certificate was issued to Mr Joy on 21 July 2023 following conciliation about the matter of unpaid wages, this was sufficient for the purposes of s18A in relation to a claim then brought by him and other employees about unpaid time off for union activities.[13]I have considered the case of Compass Group v Morgan UKEAT/0060/16/RN, to which both parties drew my attention, and I have also reviewed the case law which is quoted in that decision (Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445 EAT and Science Warehouse Ltd v Mills [2016]) though those cases address the situation where the claimants sought to make amendments relating to matters that arose after EC commenced and claims were filed. I have also looked at the more recent case of Akhigbe v St Edward Homes Ltd and ors 2019 ICR D6, EAT but this did not add anything, for my purposes here, to the analysis in Compass v Morgan. I was not pointed to any case law by the parties, where the tribunal had concluded that there was a valid EC certificate in a situation where a claimant sought to issue a claim about a matter completely unrelated to the matter which was the subject of the conciliation, such as is the case here.[14]Mr Deane submits, for the claimants, that where there is no requirement to conciliate at all (beyond contacting ACAS to provide a name and address) the meaning of ‘matter’ as used in s18A should be given its widest possible interpretation and the tribunal should be cautious about barring a claim for failure to comply with raising a particular matter in conciliation discussions. He drew the tribunal’s attention to paragraph 21 of Compass where Mrs Justice Simler DBE said ‘We do not regard the fact that the claimants might bring claims about which EC has not been conducted as significant in the circumstances where there is no obligation to undertake any EC at all and certainly no obligation to undertake EC in relation to any particular claim.’[15]Both parties referred to the paragraph 23 of the judgment where Mrs Justice Simler DBE said ‘…we can see no reason artificially to restrict the scope of the phrase ‘relating to any matter’. That does not mean an EC certificate affords a free pass to bring proceedings about any unrelated matter; it does not.’[16]Ms Barsam’s submission on behalf of the respondent is that although the language of ‘matter’ is broad language, the assessment of whether or not there is a related matter must be viewed together with the purpose of the process. The purpose of the process is to provide an opportunity to engage in EC through ACAS.[17]Mrs Justice Simler DBE goes on in paragraph 23 to set out that it will be a question of fact and degree for the tribunal to determine as to whether ‘proceedings instituted by an individual are proceedings relating to any matter in respect of which the individual has provided the requisite information to ACAS.’ I have concluded above that the matter which was the subject of conciliation and the matter which is the subject of the claims are entirely unconnected.[18]I agree with Ms Barsam and it is my decision that, whilst the wording of S18A, as confirmed by Mrs Justice Simler DBE in Compass is broad and ‘matter’ should be construed widely, this is a case in which to construe it so widely as to be in the claimant’s favour, would be, effectively, to allow the claimant to have bypassed the EC process.[19]I find that the claimants have not complied with the requirement to contact ACAS before instituting proceedings as required by s18A Employment Tribunals Act 1996 and therefore the tribunal has no jurisdiction to hear the claims, and they are dismissed