EAT Case Confirms That it is Correct to Reject an ET1 Where a Respondent's Name Substantially Differs to the Name Given on the EC Certificate!
Under Rule 12(2A) of the Employment Tribunal Rules a claim will be rejected if the name of the respondent on the claim form is different to 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 the name or address and it would not be in the interests of justice to reject that claim.
The recent case of Giny v SNA Transport Limited considered what would amount to a ‘minor error’ in such a circumstance.
Mr Giny lodged a number of claims in July 2016. Before issuing his claim form, Mr Giny tried to provide ACAS with the prospective respondent’s name and address for the EC certificate (as is needed). However, Mr Giny wrongly identified the prospective respondent as an individual who was his employer, although he did give the correct address of the respondent. Mr Giny then went on to cite the correct respondent employer’s name (SNA) in his claim form, but only after he had taken legal advice.
The employment tribunal subsequently rejected the claims brought by Mr Giny, because the prospective respondent’s name in the EC certificate differed to the name that had been given in the claim form. Mr Giny appealed against this decision.
In the Employment Appeal Tribunal (EAT), Mr Giny asked for the employment tribunal’s decision to be reconsidered on the basis that it was not in the interests of justice to reject the claim – he argued that the difference between the names constituted a ‘minor error’ as per Rule 12(2A). Mr Giny also referred to the fact that the respondent cited in the claim form was not wholly unrelated to the correct respondent, because they shared the same address. Mr Giny further submitted that Rule 12(2A) should be construed purposively (i.e to achieve the purpose of the legislation), because it was not uncommon for an employee to be confused about the correct legal name of his employer.
In its defence, SNA submitted that there was a substantive legal distinction between a natural person and a legal person which could not be overlooked. As Mr Giny had identified an individual (rather than another company) as the respondent, SNA argued against there being a ‘minor error’ as a result.
The EAT dismissed the appeal, because it found that that there was no error of law in the employment tribunal’s decision to reject the claim. The EAT considered that the tribunal was entitled to find that the discrepancy between the EC certificate and the claim form did not constitute a ‘minor error’. The EAT further held there was no scope for the purposive interpretation of Rule 12(2A).
This case is a clear and stark reminder that claimants need to ensure that the correct name of their employer is given and stated on the EC certificate. The strict approach adopted is good news for employers, but will be less welcome for individual claimants who may well be confused about the identity of their employer in some instances.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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