Under regulations governing tribunal procedure, judges have the power to reject a claim if the name of the employer on the claim form is not the same as the name on the early conciliation form. In Stiopu v Loughran, the Employment Appeal Tribunal (EAT) held that where the names are different, the regulations require the tribunal to ask itself whether it was a minor error and if it would therefore “not be in the interests of justice to reject the claim".
Basic facts
Ms Stiopu worked for Carebrook Ltd for 27 weeks. On 4 March 2019, she applied for and received an early conciliation certificate (numbered R126166/19/85) from ACAS. This identified her as the prospective claimant and Carebrook Limited based at 231 Camden High Street, London NW1 7BU as the prospective respondent (employer).
On 17 April, Ms Stiopu lodged a tribunal claim form (called an ET1) which identified Gerard Loughran as the respondent based at Pret a Manger, 231 Camden High Street, London NW1 7BU. The claimant ticked the box to state that she had obtained an ACAS certificate. She claimed that she was owed holiday pay as well as some other payments.
Tribunal decision
The tribunal rejected her claim because the name of the respondent on the ET1 claim form was different from the name on the ACAS certificate.
She appealed, arguing that the tribunal judge should have considered that this was a “minor error” under Rule 12(2A) of Schedule 1 to the Employment Tribunals Rules of Procedure Regulations 2013 and it would therefore “not be in the interests of justice to reject the claim".
In particular, Ms Stiopu argued that the judge should have taken into account that:
- She had given the name of Carebrook Limited in the box on the ET1 asking her what compensation she was seeking
- The complexity of the employment situation between Pret a Manger (who interviewed her and issued her with a contract of employment), Carebrook Ltd (who employed her) and Mr Loughran (who was her point of contact at Carebrook Ltd and made regular weekly visits to the Pret a Manger shop)
- English was not her first language
- She was not legally represented
- The address given for Mr Loughran and Carebrook Ltd was the same
- There was a close relationship between Mr Loughran and the company
Relevant law
Rule 12(2A) states that a claim should be rejected if the name of the respondent is not the same in the claim form and the conciliation form. However, it then goes on to say that the judge can make an exception if they consider that “the claimant made a minor error in relation to the name and address and it would not be in the interests of justice to reject the claim."
EAT decision
Allowing the appeal, the EAT held that rule 12(2A) is a "rescue provision" that is designed to prevent claims from being rejected for technical failures such as where the name of the respondent on the early conciliation certificate does not match the name on the ET1.
This language, said the EAT, therefore requires every employment judge in a case where the names on the ET1 and the early conciliation form are different to ask themselves specifically whether there is a "minor error" in relation to a name or address and whether it would or would not "be in the interests of justice to reject the claim" as these questions are part and parcel of the overall rule under 12(2A). The tribunal judge did not consider this provision and that was an error of law.
In this case, the information before the tribunal judge was different to that before the EAT. It was also unclear as to whether there was an additional substantial shareholder other than Mr Loughran. The case was therefore remitted back to the tribunal to decide whether the difference in the names was a minor error.
Comment
This case does not mean that a misalignment of the name of the respondent on the early conciliation form and the employment tribunal claim form will always amount to a minor error. The reason for this case being remitted to the tribunal was that no consideration had been given at all as to whether the difference amounted to a minor error or not.