ACAS slip-ups won’t always win the day: what Abel v Reynolds (EAT, 2025) means for schools, MATs and academies

The EAT has reminded us that the ET won’t always strike out a claim just because the claimant didn’t get EC right - especially where the Tribunal itself accepted the claim and let the case progress.

That’s the headline from Abel Estate Agent Ltd & Others v Elizabeth Reynolds [2025] EAT 6.

What actually happened?

• The claimant brought a whistleblowing dismissal claim and a detriment claim under s.48 ERA 1996.

• She hadn’t done ACAS EC for one limb of the claim (the detriment claim against individuals).

• The ET missed that and allowed the claim to continue.

• Later, the respondents said: “No EC → no jurisdiction → strike it out.”

• The EAT said: not so fast. Once the ET has accepted the claim, the position is governed by Clark v Sainsbury’s Supermarket Ltd [2023] ICR 1169 — the claim isn’t automatically a nullity. The ET can deal with the defect using its case management and strike-out powers.

• The EAT also said the earlier case Pryce v Baxterstorey Ltd [2022] EAT 61 shouldn’t be followed to the extent it suggested that every missing-EC claim is a jurisdictional dead end.

So: no EC does not always mean “game over” for the claimant once the ET has let the claim in.

Why this matters more in education than in other sectors

Education claims are messy. Staff don’t always know who the employer is.

Typical scenarios:

• A TA or safeguarding lead names the Trust, the Headteacher and the CEO.

• A teacher raises a safeguarding/health & safety/finance concern and then sues the MAT plus a governor.

• In a mixed governance or faith arrangement the claimant names the academy company, the diocese and the LGB.

• A centrally employed MAT staff member names the individual director they say victimised them.

In all of those, it’s very common for the claimant to do ACAS EC for the main employer, but forget to EC the individuals or the additional entities. That’s the gap this EAT decision deals with.

Abel makes it harder for respondents (including schools and MATs) to say, months down the line, “you missed EC for the Head so that part must automatically fall away.”

The legal takeaways

1. If the ET accepts the claim, it’s not automatically void. The EAT followed Clark v Sainsbury’s: once the Tribunal decides to accept the claim rather than reject it at the gateway, you don’t pretend later that it never existed. You deal with it through the ET Rules (e.g. Rule 27 or 37), not by calling it a nullity.

2. EC is still required — but the consequence is flexible. The Rules says a claimant “may not present” a claim without EC, but the EAT said that doesn’t always remove the ET’s power to hear it. That’s the key nuance.

3. Pryce isn’t the answer anymore.T o the extent employers were relying on Pryce v Baxterstorey to argue “no EC = no jurisdiction, end of story”, the EAT has said that approach is “manifestly” not right.

4. Tribunal mistakes won’t usually be taken out on the claimant. Here, the Tribunal didn’t spot the missing EC. The EAT wasn’t prepared to punish the claimant for that. That matters in education where many claimants are unrepresented.

5. Whistleblowing/detriment claims will tend to survive. Because these often involve safeguarding, spending of public funds or pupil safety, Tribunals are reluctant to strike them out on pure technicalities.

What schools, MATs and academies should do now

1. Build in an EC check on day 1

When an ET1 arrives (into the school office, Trust HR inbox or your outsourced provider):

1. List every respondent the claimant has named.

2. Match each one to an ACAS EC number.

3. If there’s a gap, write to the ET straight away and ask them to look at it.

This is still the best time to win on EC - right at the start.

2. Don’t wait months and then hope for a knockout

Abel makes late, technical objections a weaker play. You can still raise them and sometimes you should but don’t assume the ET will strike out the claim just because you’ve spotted a missing EC 4 months later.

3. Prepare a merits defence anyway

In whistleblowing, safeguarding or SEND-related cases, assume the ET will want to hear the claim. So plead the substance:

• no protected disclosure,

• no causation,

• legitimate management action,

• limitation/Polkey where relevant.

Procedural points should support the defence, not be the defence.

4. Show actual prejudice

If you’re raising a late EC point, explain the damage: “We’ve already prepared witness evidence for the CEO / we added the Head to the bundle / we instructed counsel unnecessarily.” Tribunals are more receptive when there’s real prejudice, not just a technical spot.

5. Train school leaders and local HR

A lot of ET1s are still opened first in schools. A 1-page SOP — “ET1 received → send to Trust HR the same day → HR checks EC for every named respondent” — will save a lot of these problems.

So… is ACAS EC still important?

Yes. If the ET spots the defect at the outset, it can still reject the claim.

What Abel changes is this: if the Tribunal has already let the claim run, the missing EC won’t always rescue the respondent. For education employers, the practical message is simple:

• Check early

• Object early

• But be ready to defend on the merits

That’s the safest approach for multi-respondent, whistleblowing-heavy education claims.