A case earlier last month has highlighted a pitfall for a claimant when making mistakes in Acas early conciliation. Ms Chard issued the Acas early conciliation in the name of an individual who owned the business that employed her (therefore Acas issued the certificate in the wrong name too). Later, when her employment solicitors issued an unfair dismissal claim, they issued it (correctly) against the actual employer company. She had a claim that may have been very juicy indeed, as she had 27 years’ service.
The Employment Tribunal (ET) dismissed the claim on the grounds that the names on the ET1 and the Certificate were different. The ET rules deal with mistakes in Acas early conciliation. In the part of the tribunal rules (laid down by parliament) dealing with rejecting claims, the wording is:
“the staff of the tribunal shall refer a claim form to an Employment Judge if they consider that …the name of the respondent on the claim form is not the same as the name of the prospective respondent on the Acas early conciliation certificate…”.
The get out clause is if the claimant made “a minor error” and “it is in the interests of the justice to allow the claim to proceed”. It is very important to ensure that both names on the Certificate and the ET1 are identical so as to avoid this situation entirely.
When she applied for a reconsideration of the decision on the grounds that it was a “minor error” the Judge dismissed the claim stating that it was more than minor. That would be a misspelling or leaving out part of the respondent’s correct name. This left the employee with no tribunal claim against the employer, though potentially a negligence claim against the lawyer for not picking up on her earlier mistake.
The Employment Appeal Tribunal (EAT) set aside the decision in the ET and allowed the claim to proceed, in the interests of justice. The ET had erred on its part and had itself made a mistake in quoting the right rules in its judgment (embarrassingly). The ET also failed to deal adequately with the question of whether it was a minor error but rather concentrated on what would be a minor error.
So Ms Chard avoided her case being struck out, but only by the skin of her teeth.
However not all claimants have been so lucky after making mistakes in Acas early conciliation. A Mr Giny had similar facts of Chard but was decided the other way. Each case will be considered on its own facts, perhaps this is why the appeal in Chard was allowed. In Chard the Judge said that such a literal reading of the rules meant they were inconsistent with the overriding objective which is to deal with cases fairly and justly.
If there’s any doubt about whether the employer named on the EC certificate is right, make sure you actually get Acas to contact the employer. That way, if there is any link between the ‘right’ person and the ‘wrong’ person, the employer will have a harder time with the interests of justice argument (assuming the decision on ‘minor error’ goes the employee’s way).
The real moral of the story is to get your claim in before the tribunal within a month of your dismissal. That way, if there are mistakes in your early conciliation process you will find out if there is a problem with the name of the respondent in plenty of time to bring your claim again properly.
By Manpreet Kooner