Employment Practitioners have often looked on quizzically at their Civil Practitioner counterparts and wondered why there appears to be so much form-filling, applications to amend and satellite-litigation.
Those in civil practice know only too well the sanctions for deviating away from the Civil Procedure Rules (CPR), and issues such as a slight inaccuracy in the spelling of a name or an incorrect address can – and often does – spell disaster, and an urgent application to amend, or worse, a relief from sanctions, soon follows.
However, it has always been the case that the Employment Tribunals (ET) expect similar levels of diligence from representatives bringing and defending claims.
This was emphasised again in the recent case of Adams v British Telecommunications Plc UKEAT.
The ET Rules are thus: an ET must reject a claim form for various specified reasons, including that it “does not contain an early conciliation number…”, while an incorrect EC Certificate number in an ET1 can be fatal.
In this matter, the Claimant submitted her ET1 for claims of unfair dismissal and race discrimination. The ET 1 was submitted just in time but she entered an incorrect EC certificate number. By the time a new corrected ET1 and correct ACAS EC Certificate number was lodged, she was 2 days out of time and the claims were rejected.
The Claimant appealed on the basis that the Employment Judge (EJ) incorrectly focused on the first claim (for Unfair Dismissal) and failed to address the second claim and whether it was reasonably practicable to have presented that in time.
The Employment Appeal Tribunal (EAT) agreed that the first claim, in this case, was validly rejected by the ET as it had not included a correct EC Certificate number.
The EJ effectively treated the fact that the first complaint was presented in time (albeit on a defective basis), as excluding the possibility of finding it was not reasonably practicable to present the second claim in time. This went against the findings in Software Box Ltd v Gannon UKEAT when the EAT held that a complaint made within the time and then rejected, did not preclude the consideration of whether a second claim traversing the same ground is one in which the ET should have jurisdiction.
With regard to the extension relating to the race discrimination claim, the onus would be on the Claimant to satisfy the ET. The Claimant argued that the EJ left out a material factor in exercising discretion, i.e. the balance of prejudice between the parties and, moreover, the prejudice to the Claimant.
Alas, the EAT agreed that, while the Claimant had lost her right to bring a discrimination claim on its merits, the short delay caused no actual prejudice to the Respondent. The failure by the EJ to take into account a significant factor in the exercise of its discretion was an error of law. The decision that it was not just and equitable to extend time could not stand.
The EAT duly dealt with the disposal of the matter and accepted the Claimant had made a “genuine and unintentional mistake” when submitting the first Claim Form with the wrong ACAS EC number; which impeded her ability to bring the second claim on time. It would not have been reasonably practicable for her to present that second claim in time, and so the time should have been extended in respect of the unfair dismissal claim.
The EAT accepted it was just and equitable to extend the time for the presentation of the unlawful discrimination claims.
In respect of an error in the respondent’s name, the EAT decided in Chard v Trowbridge Office Cleaning Services Ltd it was a minor error and not in the interests of justice to reject the claim.
Here, the Claimant named the controlling shareholder of the Respondent Company rather than the employing Respondent – a limited company – for the EC Certificate. The error was not spotted and her newly-engaged Solicitor filed the ET1 in the name of the limited company as the Respondent. The ET rejected the claim because of the failure to comply “… with the requirement at rule 10(1)(c) of the above Rules, because the Respondent named on the claim form is different to that named on the Early Conciliation Certificate”.
The Claimant’s solicitor duly applied for and submitted another EC certificate and named the limited company and asked for the ET to reconsider the matter, citing 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 ET held that it was not a minor error and decided that the claim was by then out of time anyway in view of the delay until the error had been rectified.
The EJ also concluded that it had been reasonably practicable for the claim to have been presented in time because the Claimant’s solicitors had been at fault for the oversight and it would have been possible to obtain a second corrected EC certificate before the expiry of the limitation period.
The EAT heard the subsequent appeal and confirmed that what constitutes a “minor error” is one of fact and judgment for the ET.
The overriding objective in the ET Rules are to ensure interests of justice prevail. This needs to take account of the reality that some parties will be unrepresented and so a certain amount of flexibility and common-sense needs to exist. The interests of justice required that the claim should not be rejected and was to proceed on its merits.
While the aforementioned-cases enabled the EAT to take a less archaic approach to ‘minor errors’, then perhaps we would find in the Civil Courts, it does make clear that much satellite litigation stems from such malfunctions of service, and can become a costly exercise. Moreover, while the EAT rules do offer some common-sense to the realities of employment litigation, there can be no doubt that parties and practitioners alike would do well to take heed of the difficulties that arise and take steps to prevent, rather than cure, any defects at these crucial stages.
For support with or guidance you would like with managing an employment tribunal, please get in touch with the HPC team today.
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