Different name on ET1 & Early Conciliation certificate was a minor error
Completely confounding the law of averages, here we have another case in the Employment Appeal Tribunal (EAT) on the question of whether an ET1 (the Tribunal claim form) will be rejected if the name of the employer (known as the respondent) differs to that on the Early Conciliation Certificate – only weeks after the EAT heard an almost identical case (Giny v SNA Transport Limited UKEAT/0317/16). The main difference between the two – they have been decided entirely differently!
Under the Employment Tribunal rules, Rule 12(2A), a claim will be rejected by an employment tribunal if the name of the respondent on the claim form is not the same as on the Early Conciliation (EC) certificate. The exception to this is where (1) the judge considers the claimant made a minor error in relation to a name and address and (2) if so, the judge must consider whether it would be in the interests of justice to allow the claim to proceed. This has come to be referred to as the “two stage test”.
Ms Chard was employed by Trowbridge Office Cleaning Services Ltd (TOCS Ltd) for 24 years before she was dismissed for gross misconduct.
Ms Chard issued a claim against TOCS Ltd but when she gave the information to ACAS, which is required for early conciliation, she gave the name of the controlling shareholder of TOCS Ltd, Allistair Belcher, as the prospective respondent. She was unrepresented at the time. Ms Chard then went on to instruct solicitors who issued the ET1 claim form, correctly naming TOCS Ltd as the employer and the Respondent.
The Employment Tribunal judge rejected Ms Chard’s claim because the names on the EC certificate and the ET1 were different. Ms Chard applied for a reconsideration of the decision, arguing that the mistake in name was a minor error because Mr Belcher was the controlling mind and majority shareholder of TOCS Ltd and for all intents and purposes operated like a sole trader.
Following a hearing, the Tribunal dismissed Ms Chard’s claim. The Tribunal Judge ruled that referring to a private individual as the prospective respondent on the EC certificate and not the employing company was not a minor error, such as a misspelling or omitting part of the title of the respondent.
Ms Chard appealed to the Employment Appeal Tribunal (EAT).
In the EAT, Mr Justice Kerr said that on a literal reading of Rule 12(2A) the first stage is to consider whether the error is minor without regard to the interests of justice. The second stage is then to consider, having concluded that the error is minor, whether it is in the interests of justice to allow the claim to proceed. Mr Justice Kerr went on to say that such a literal reading was inconsistent with the overriding objective of the Tribunal which includes dealing with cases fairly and justly and avoiding unnecessary formality and seeking flexibility in proceedings.
Mr Justice Kerr said he preferred to read Rule 12(2A) as “indicating that the “interests of justice” part of the Rule is a useful pointer to what sort of errors ought to be considered minor”.
Mr Justice Kerr concluded that the Tribunal had not adequately addressed the argument of whether a mistake in name between an individual and a company can be a minor error. Instead the Tribunal had appeared to conclude that only a spelling or typing error in a name could amount to a minor error – Mr Justice Kerr said this was not correct in law. The EAT held that Ms. Chard’s claim could proceed, that the error she made was minor (here Mr Justice Kerr noted that Mr Belcher was the controlling shareholder and to a lay person, he would be seen as the employer) and the interests of justice required that the claim should not be rejected.
Points to note
- In the earlier case of Giny v SNA Transport Limited UKEAT, the claimant made the very same mistake Ms Chard did but the EAT said the mistake was not a minor error so the claim could not proceed – applying the “two-stage” test approach to Rule 12(2A). In this case, the EAT applied a more flexible interpretation to Rule 12(2A), allowing the “interests of justice” to be taken into account in determining whether an error was minor or not.
- The EAT was critical of the way the Tribunal rejected Ms Chard’s claim – the Tribunal quoted the wrong rule at one point – and you get the sense Ms Chard was not going to be punished for her mistake when all around her others were making them too! She also had 24 years’ service, had put her claim in on time and to reject her claim on the basis of an error would have given the respondent a “windfall limitation defence”.
Action to take
1) The case once again highlights the importance of accurately completing ACAS early conciliation notifications and ET1 forms.
2) It remains possible for an employer to try and get a claim thrown out due to mistakes in names, but it will be harder to do this now with the emphasis being on what is in the “interests of justice”.
Chard v Trowbridge Office Cleaning Services Limited – Employment Appeal Tribunal
You can read the full judgement here
This update has been prepared by Miranda Amos
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