Legal-ease: Incorrect tribunal forms
Caroline Acton, October 13, 2017
Tribunal claims can be rejected or delayed if forms are incorrect
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, 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.
In Chard v Trowbridge Office Cleaning Services the EAT considered whether a tribunal had been right to reject a claim on the basis that the prospective respondent’s name in the EC certificate was incorrect.
Ms Chard had been employed by Trowbridge Office Cleaning Services (TOCS). She incorrectly named the controlling shareholder and managing director of TOCS Mr Belcher as her employer, rather than the company, on the EC form. Belcher’s name appeared on the EC certificate.
Chard later instructed a solicitor, who presented an ET1 claim form correctly identifying TOCS as the respondent. The claim was rejected because the respondent’s name on the EC certificate and the ET1 differed. The solicitor then obtained a fresh EC certificate with the correct name and Chard sought reconsideration of the rejection.
The employment judge decided that the claim could now be accepted but that as the defect had only been rectified on 4 January 2016 it had to be treated as being issued on that date, meaning that it was out of time. The judge decided:
- The difference between the name of a private individual and that of a company wasn’t a minor error.
- It was reasonably practicable for the claim to have been presented in time.
Chard appealed and the EAT allowed it. Mr Justice Kerr approved the recent analysis of Rule 12(2A) provided in the Giny v SNA Transport employment appeal tribunal, albeit reaching a different conclusion on very similar facts. Kerr 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.
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”.
This example serves to reinforce the message that each case will rest on its own facts, and while an employer may try to get a claim rejected because of errors in names it may be harder to do this when judges place the emphasis on what is in the ‘interests of justice’.
Caroline Acton is a solicitor at ESP Law, provider of HR magazine's HR Legal Service