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The Devil Really Is In The Detail: Giny v SNA Transport Limited27th July 2017 Employment
The recent Employment Appeal Tribunal (EAT) judgment of Giny v SNA Transport Limited earlier this month acts as an stark reminder for claimants of the importance of providing accurate information to ACAS during the early conciliation process to avoid claims being rejected by the tribunal.
Before lodging a claim at the employment tribunal a claimant has to first complete ACAS early conciliation which culminates in the claimant being issued with an Early Conciliation certificate. A claim will be rejected by an employment tribunal if the name of the respondent on the actual claim form itself differs from the name of the prospective respondent on the early conciliation certificate. The exception is where a tribunal judge decides that the claimant made only a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim (Rule 12 2A of the tribunal rules).
In this month's EAT judgment the EAT ruled that the employment tribunal was correct to reject a claimant's claim form where the name of the Respondent within the claim form was 'substantially different' to that named on the ACAS Early Conciliation Certificate.
Mr Giny was employed as an office manager by SNA Transport Ltd from February 2010 until 15 March 2016 when he resigned following alleged bullying by company director Mr Ahmed. In July 2016, Mr Giny claimed constructive unfair dismissal.
During the early conciliation process the Claimant provided ACAS with contact details for the prospective respondent whom he identified as being Mr Ahmed rather than SNA, the company and his actual employer. At this point Mr Giny did not have any legal representation. After concluding the Acas Early Conciliation process the Claimant took legal advice and when he actually submitted his claim form to the tribunal he correctly identified the respondent as SNA Transport Limited.
However, unfortunately for the Claimant the tribunal rejected the claim on the basis that it could only accept claims against respondents for whom an early conciliation certificate had been obtained. The tribunal whilst sympathetic to the Claimant, confirmed that it had no jurisdiction to accept a claim against SNA due to the prospective Respondent identified in the claim form being different to that named in the Early Conciliation certificate.
Mr Giny applied for the judgment to be reconsidered by the tribunal arguing that rejecting the claim was not in the interests of justice and also that the discrepancy amounted only to a 'minor error'. He argued further that they were essentially 'one and the same' since, based on the correct insertion of the address, the Tribunal would have had little trouble finding the correct Respondent regardless of the administrative error. It was submitted that rejecting the claim on a minor issue where the remainder of the details were correct was both unreasonable and disproportionate to the overriding objective.
The Tribunal rejected the application for reconsideration stating that the Tribunal Rules were clear on the necessity for the Respondent's correct name being on the Early Conciliation Certificate and that in this case this had not happened. It held that the difference in name one the two documents amounted to more than a minor error.
On appeal to the EAT the court had to decide whether there had been an error in law by the tribunal and decided that there had been no such error pointing out that the tribunal was entitled to determine that the inconsistency in the Respondent's details was not 'minor'. The EAT qualified its position and stated that it did not accept that a mistake between the names of a natural person and a legal person could never in law, amount to a minor error, but that the tribunal felt that it did not amount to such in this case.
This judgment might appear harsh particularly as the Claimant was unrepresented during ACAS early conciliation and he was clearly confused about the identity of his employer. It is also noteworthy that he had not been provided with a contract of employment or section 1 statement from his employer which would have clarified who he was employed by. However, even against this background the judge felt that there was no basis upon which a forgiving interpretation was warranted given the clear language of Rule 12.
By way of contrast in a second EAT decision handed down recently the EAT adopted a more flexible approach and allowed a claim to proceed where there was a disparity between the name of the respondent on the EC certificate and the name of the respondent on the claim form. In this case (Savage v JC 1991 LLP T/A John Campbell, Messengers at Arms and Sheriff Officers and others UKEATS/0002/17) the EAT found the employment tribunal had erred when it refused to accept jurisdiction as result of disparity between a trading name and a named individual.
Taking these cases in the round it is clear that cases will be judged on their own specific facts and that it will be a question for the tribunal as to whether the evidence presented amounts to a 'minor' error or not. However the key note for anyone wanting to claim is to ensure that they have established properly the identity of their employer to avoid issues around jurisdiction arising in the first place.