Court of Appeal clarifies requirement for would-be ET claimants to engage in ACAS early conciliation

The Court of Appeal has today handed down judgment in the case of Abel Estate Agent Ltd & Ors v Elizabeth Reynolds [2025] EWCA Civ 1357, clarifying the consequences of failure to comply with ACAS Early Conciliation.

Outer Temple Chambers’ Employment Law Team acted on both sides in the Court of Appeal in the case of Abel Estate Agent Ltd & Ors v Reynolds. Gus Baker and Jessica Franklin, instructed by Kilgannon & Partners LLP, represented the appellants/respondents. On the other side were Will Young and Chevan Ilangaratne, who were instructed pro bono through Advocate to represent the respondent/claimant.

The Court of Appeal has confirmed that section 18A of the Employment Tribunals Act 1996 sets a strict precondition for the presentation of Employment Tribunal claims. Where a claimant has not invoked the ACAS early conciliation process and obtained a certificate before issuing, the Tribunal has no jurisdiction to hear the claim. (Evidential defects, such as a missing or incorrect EC number despite a valid certificate, remain procedural issues for case management rather than jurisdictional bars).

However, the Court drew a distinction between instituting proceedings and subsequent amendments to claims. Section 18A governs the institution of proceedings. Once a claim has been validly presented, the Tribunal may, in the exercise of its discretion, allow amendments to introduce additional causes of action that would ordinarily require ACAS early conciliation.

In Reynolds, the claimant presented a claim for whistleblowing dismissal and whistleblowing detriments. The claim for dismissal was exempt from early conciliation, because it came with an application for interim relief. Her claim for whistleblowing detriments was not so exempt. Because the claimant had not contacted ACAS before instituting her claim, the Tribunal had no jurisdiction to hear the detriment claim. However, the Court of Appeal found that the Tribunal was entitled to allow the Claimant to amend her claim to add in the detriment claim. The appeal was therefore dismissed: the claim proceeds as a claim for both whistleblowing dismissal and whistleblowing detriments.

The decision confirms that early conciliation is a requirement for validly instituting proceedings, but it does not operate as a bar on amendments to existing claims, even where there is no ACAS certificate at all.

Read the full judgment in Abel Estate Agent Ltd & Ors v Elizabeth Reynolds here.

Read our earlier article on this case, including the earlier EAT judgment here.

Will Young

Will’s practice is divided primarily between personal injury, clinical negligence and employment. He appears regularly in the Employment Tribunal (acting both for Claimants and Respondents), as well as the Employment Appeal Tribunal. He also provides written advice and drafts pleadings when required. Will has a particular interest in employment cases involving allegations of psychiatric injury caused by discrimination or whistleblowing detriment, often in high-pressure legal, financial services, or similar employment.

Gus Baker

Gus’ practice focuses on employment, pensions, commercial litigation (including arbitration) and professional negligence disputes arising from his core practice areas. He has extensive experience in handling employment cases in the High Court, Employment Tribunal, and in appellate proceedings. Gus’ expertise covers a wide range of matters, including commercial employee competition and business protection disputes, whistleblowing and discrimination claims. Gus is frequently engaged to represent clients in cases that are exceptionally sensitive, or involve substantial sums.

Jessica Franklin

Jessica specialises in personal injury and employment. She was junior counsel for the successful claimants in British Airways plc v Rollett & Others [2024] IRLR 891, in which the Employment Appeal Tribunal found that it had jurisdiction to hear claims brought under s19 Equality Act by claimants who do not themselves have protected characteristics. This type of claim is now preserved in s19A Equality Act. Jessica is very happy to advise on S19A claims and this novel area of the law.

Chevan Ilangaratne

Chevan Ilangaratne is a specialist Employment, Personal Injury and Clinical Negligence law practitioner, having completed his pupillage solely in these areas of law. He has developed considerable experience in employment law, having represented both claimants and respondents in a number of preliminary and final hearings in the ET, as well as in judicial mediation hearings and Dispute Resolution Appointments. He also brings with him an in-depth knowledge of the Public Interest Disclosure Act 1998 having worked for a whistleblowing charity as a Legal Adviser.

To find out more about our Employment Law team above, contact Nicholas Levett on +44 (0)20 7427 4908 or Mark Gardner on +44 (0)20 7427 4909 for a confidential discussion.

News 27 Oct, 2025