Clark & ors (respondents) v Sainsbury’s Supermarkets Ltd (appellant)

Tuesday 28 February 2023

By Appellant’s Notice filed on 12/10/22, Sainsbury’s (the respondent in the Employment Tribunal) appeals against the order of the Employment Appeals Tribunal allowing the Claimants’ appeal against the decision of the ET and reinstating the C’s claims.

The case concerns the meaning and effect of the rule 10 and 12 ET Rules of Procedure 2013 (the ET Rules) as they relate to early conciliation under the auspices of ACAS.

The EAT held that the ET erred in law in rejecting the claims of prospective claimants whose names did not appear on an EC Certificate the number of which was quoted on the claim form in these multiple claims. It was enough that the claim form contained for each Respondent an early conciliation number of an EC Certificate on which the name of one of the prospective claimants making the joint claim appeared.

The Claimants brought their claims on claim forms containing multiple claims:the claim forms contain a single number from an EC certificate, but the certificate does not relate to the Claimant- they are not named on it.

The ET found that if the claim form contained no number from any EC Certificate relating to the Claimants, rules 10 and 12 required their claims to be rejected.

The EAT held that so long as the multiple claim form contained one valid EC number from some EC certificate relating to any claimant on the form, rule 10 did not require any other claimant on the form to provide any EC number, so that Claimants’ claims were properly instituted.

Sainsbury’s submits that the EAT erred in failing to have proper regard to the obvious legislative purpose of the gatekeeping purpose of rule 10 and 12 which would be undermined by the EAT’s approach to multiple claims: there would be no way for the ET to assess whether claimants had complied with early conciliation.

This is the first EAT ruling to address rule 10 and 12 in the context of multiple claims.

View hearing:

Part 1

Part 2