26 July 2017

In 'Chard v Trowbridge Office Cleaning Services Ltd', the EAT has upheld an appeal against an Employment Tribunal’s decision to reject a claim whereby the claimant had incorrectly named the respondent in the ACAS EC Certificate and subsequently lodged the claim against the correct prospective respondent. The EAT held that this was a “minor error” under Rule 12(2A) of the Tribunal Rules 2013 and that the claim should not have been rejected.

Facts

The claimant was employed by the respondent (TOCS Ltd) for around 27 years before she was summarily dismissed on the grounds of gross misconduct on 26 August 2015. She sought to bring a claim of unfair dismissal (among other things) against TOCS Ltd. However, she incorrectly named the company’s controlling shareholder (AB) as her employer when applying for an early conciliation (EC) certificate. This was done at a time when she was not legally represented. The EC certificate (which was subsequently issued on 2 October 2015) named (AB) as being the prospective respondent rather than TOCS Ltd.

The claimant consulted solicitors on 30 October 2015. The solicitor did not identify the error on the EC certificate. They then wrote a letter before claim which was addressed to (AB) (in his capacity as Managing Director of the TOCS Ltd). Within this, the solicitor set out in detail why he considered the claimant’s dismissal to be unfair and invited settlement proposals.

As settlement discussions were not forthcoming, a claim was filed on 3 December 2015. The claim correctly named TOCS Ltd as being the prospective respondent and the correct EC number was also recorded on the claim form.

On 10 December 2015, the limitation period (which had been extended by ACAS EC) ended. On 22 December 2015, the Tribunal wrote to the claimant’s solicitor notifying him that the claim had been rejected because the claimant had “not complied with the requirement at rule 10(1)(c)” of the Employment Tribunal Rules of Procedure 2013 “because the Respondent named on the claim form is different to that named on the Early Conciliation Certificate”.

The applicable rule was in fact Rule 12(1)(f) [not Rule 10(1)(c)] of the ET Rules, and is subject to Rule 12(2A) whereby a Judge is bound to reject the claim “unless 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 rejection notice was sent to the claimant’s solicitor but his office was closed due to the Christmas and New Year period. When it came to his attention on 4 January 2016, he applied for a new ACAS EC certificate which was issued on the same day, correctly naming the TOCS Ltd as the prospective respondent (instead of (AB)). He also wrote to the Tribunal requesting reconsideration of the decision to reject the claim. He pointed out that the incorrect rule had been cited in the rejection notice suggesting that the claim must have been rejected under Rule 12(2A) instead. He also submitted that the error made by the claimant in the first ACAS EC certificate had been a minor error, given that (AB) is the managing director and majority shareholder of TOCS Ltd, conducts the day to day running of the business, for all intents and purposes operates the business as a sole trader and (as far as the claimant was aware) no other individual assists with the management of the respondent. He also submitted that the error was excusable as (AB) had been the individual responsible for the claimant’s dismissal and it would not have been in the interests of justice to reject the claim, given that the claimant had been employed by the respondent for 27 years and had been summarily dismissed in circumstances that were such that her claim was strong on its merits. He also referred to the new ACAS EC certificate, which correctly named the respondent. He submitted that it had not been reasonably practicable to have submitted the claim within the three month limitation period and sought an extension of time on the basis that the solicitor had acted promptly once notified of the letter from the Tribunal rejecting the claim.

On 7 January 2016, the Employment Judge wrote to the claimant’s solicitor and informed him that the claim was now accepted as the defect had been rectified and that the claim was to be treated as having been received on 4 January 2016. In its subsequent ET3 response, the respondent contended that the claim was out of time. The claimant sought reconsideration, arguing that the claim should have been accepted under rule 12(2A). At a hearing on 3 May 2016, the Employment Tribunal dismissed the claim on the grounds that it was presented out of time and it was reasonably practicable for the claim to have been presented in time. In her written reasons, the Judge explained that she considered the discrepancy of the names did not amount to a minor error, noting that the original EC certificate refers to a private individual as the prospective respondent not the employing company, and the misnaming was not a minor error such as a misspelling or an omitting part of the title of the respondent. In the Judge’s view, the solicitor had been at fault for the oversight, noting that had the error been realised sooner, a second corrected ACAS EC certificate could have been obtained before the expiry of the limitation period enabling the claim to be presented in time.

The claimant appealed to the EAT. In allowing the appeal, Mr Justice Kerr (sitting alone) approved the recent analysis of Rule 12(2A) provided in Giny v SNA Transport Ltd EAT 0317/16, albeit reaching a different conclusion on very similar facts. Kerr J agreed that the “minor error” issue is one of fact and judgement and that the appeal tribunal can only set aside an earlier decision if there has been an error of law or if the decision is perverse. Kerr J agreed with the EAT in Giny that the error of naming an individual rather than the company could never be minor. However, he went on to say that he would place “considerable emphasis on the overriding objective” when considering issues of this kind, noting that this includes dealing with cases “fairly and justly” and “avoiding unnecessary formality and seeking flexibility in the proceedings” opining that this includes “the need to avoid elevating form over substance in procedural matters, especially when parties are unrepresented.”

Kerr J also considered the wording of Rule 12(2A) in light of the wording of the overriding objective, noting that instead of separately considering whether an error is minor and then whether the interests of justice require the claim to be accepted, he prefers 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 saying “to put the point another way, minor errors are ones that are likely to be such that it will not be in the interests of justice to reject the claim on the strength of them.”

In the present appeal, the EAT held that the error was clearly minor. The Respondent had been aware from the solicitor’s letter of 30 October 2015 that the claim was being brought against the respondent, not AB personally. Therefore, there was no prejudice to the respondent. Kerr J noted however that a mistake as to the identity of a respondent and a case of confusion between an individual and a company controlled by that individual will not always be a minor error. It could be one of real substance.

This case serves to reinforce the message that each case of this nature will turn on its own facts. Once again, care should be taken when completing ACAS EC notifications and ET1 claim forms as errors can prove costly. Please contact your BTO contact for help and guidance on the claim or response process.

The full judgement can be found here.

Contact: Lesley Grant Associate ljg@bto.co.uk T. 0141 221 8012