In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the ACAS early conciliation (EC) procedure for an amendment to a claim in respect of a new claim she wishes to add to her existing claim.  The Claimant wished to add a victimisation claim to her existing claims of pregnancy/maternity discrimination. She made an application to amend.

The Respondent objected to the amendment solely on the basis that she had not complied with the ACAS EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the amendment to a claim so that the victimisation claim to be added so the Respondent appealed to the EAT.

The EAT dismissed the appeal and HHJ Eady QC sitting alone said that the power to allow a new claim to be added by amendment is a matter of judicial discretion to which no time limit formally applies.  The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the ACAS EC procedure has not been followed.

S18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ‘cause of action’ or ‘claim’. The EAT rejected the employer’s argument that ‘matter’ had to be read as referring to the claim in question instead finding that a broader interpretation was required.  Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but for a variety of factors that could apply and the fact no ACAS EC procedure had been engaged could be one such factor.