When can an Employment Tribunal reject a claim because the name stated in the ET1 differs from the name on the ACAS early conciliation certificate?
Before an employee can bring a claim against their employer in the employment tribunal, it is compulsory for them to enter into pre-claim conciliation with ACAS. A claim can only be issued in the employment tribunal if the claimant has first obtained an early conciliation certificate from ACAS.
It is established law that a claim will be rejected by an employment tribunal if the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation (EC) certificate to which the EC number relates.
However, there is an exception contained at rule 12(2A) of the Employment Tribunal rules which states that the claim can be accepted where the judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim”.
The question therefore arises as to what constitutes a “minor error”? In the case of Mist v Derby Community Health Services NHS Trust UKEAT/0170/15, the claimant stated to ACAS that the prospective respondent was “The Royal Derby Hospital” but the name given on the ET1 claim form was “Derby Community Health Services NHS Trust”.
The employment appeal tribunal (EAT) had to consider whether the employment tribunal was able to accept the claim. The EAT held that a discrepancy between the name of the prospective respondent given on the EC certificate did not prevent the tribunal from accepting the claim as the difference was minor. The EAT commented that ordinarily differences should not prevent a tribunal from accepting the claim.
However, in the more recent case of Giny v SNA Transport Limited (UKEAT/0317/16), the EAT again had to considered whether the discrepancy between the name of the respondent on an ET1 and a prospective respondent on an EC certificate was a minor error.
Mr Giny was employed by SNA Transport Ltd (SNA) as an office manager. SNA’s sole director was Mr Ahmed.
Mr Giny resigned alleging constructive dismissal and before issuing his claim at the employment tribunal Mr Giny contacted ACAS with the information required for early conciliation, including the prospective respondent’s name and address.
Mr Giny erroneously identified Mr Ahmed as his employer and the prospective respondent. At that stage, Mr Giny was not professionally represented but once he had taken legal advice, Mr Giny issued an ET1 claim form with the respondent correctly named as SNA.
The employment tribunal rejected the claim, on the basis that it had no jurisdiction since the prospective respondent’s name in the EC certificate differed to the name in the claim form.
Mr Giny asked for this decision to be reconsidered on the basis that it was not in the interests of justice to reject the claim and under Rule 12(2A) of the ET Rules.
However, the tribunal dismissed the application for a reconsideration. It stated that the ET Rules were clear on the need for the name of the prospective respondent to appear on an EC certificate and this had not occurred in this case. The difference in the name on the ET1 was more than a minor error. Mr Giny appealed to the EAT.
Mr Giny argued that it was not uncommon for an employee to be confused about the correct legal name of his employer and it was pointed out that in Mist v Derby Community Health Services NHS Trust (above) it was found that trading names could be confused with legal names.
SNA defended the appeal on the basis that there was a substantive legal distinction between a natural person (Mr Ahmed) and a legal person (a limited company – SNA) which could not be overlooked. This was different to the trading name example cited in Mist.
The EAT upheld the original decision of the employment tribunal and found that there was no error of law in the tribunal’s decision to reject the claim. The tribunal had been entitled to find that the discrepancy was not a “minor error”.
Rule 12(2A) called for consideration at two stages: first, was the difference in the name or address a minor error? If not, the claim had to be rejected. If it was a minor error, a further judgment had to be made as to whether it would be in the interests of justice to reject the claim. However, the employment tribunal never got to the second stage, having decided that the difference was not minor.
This case demonstrates that employees who are considering bringing claims in the employment Tribunal should be very carefully to correctly identify their employer at the early conciliation stage.
The judge in this case expressed considerable sympathy for the claimant who had no legal representation at the time of making his error. Also, it was the case Mr Giny had not been provided with a written contract which identified his employer.
However the Employment Tribunal (and subsequently the EAT), but could see no basis for a different interpretation of the clear and straightforward language of Rule 12(2A).
The decision in the above case demonstrates the importance of employees seeking professional legal advice as early as possible in the process if they are considering bringing a claim against their employer in the Employment Tribunal.
If a claim is rejected because a mistake has been made then the tight timescales for submitting an employment tribunal claim (usually three months plus an extension for time spent in early conciliation) mean that it is not possible to correct the error by restarting the process.