Further questions about the application of Early Conciliation have been answered by the Employment Appeal Tribunal
Recently there have been several cases dealt with by the Appeal Tribunal regarding the practical effects of the Early Conciliation process on claims in the Employment Tribunal. Just last week on the podcast I featured a case about the effect on time limits. If you want to listen to the podcast you can do so by clicking here or subscribe on iTunes.
In this case the question arose regarding the correct respondent for the employee’s claim. This case was of particular interest to me as I dealt with a case earlier this year in which I was acting for an employee where a similar question arose.
My client made a claim against a Limited Company whom he was led to believe was his employer and consequently he had named the Limited Company when contacting ACAS and then on the ET1 claim form.
My client relied on the fact that he had been informed by the employer several months previously that the employer had transferred from a sole trader to a Limited Company. The Managing Director (and previous sole trader) had written to myself and the employee and signed of the letters as Managing Director of said Company. The employer had responded to the ET1 with the defence form in the name of the Company and had raised no objections to the named respondent at any time, until we had pre-hearing at the Employment Tribunal.
At the Employment Tribunal the employer argued that the employee had named the incorrect respondent and in fact the respondent was the individual sole-trader. This was important for two reasons, one if the respondent had been incorrectly named we would have had to make an application to join a new respondent outside of the time limit for making a claim, and there was a question as to whether we would have to go through the Early Conciliation process again.
The second reason why this was important was because the individual sole trader was based outside of the UK jurisdiction thus making it harder to enforce recovery of any judgement and the Limited Company, whom we alleged my client was employed by, had been sold to a third party based locally who would have been responsible for paying any judgement.
The pre-hearing was adjourned for further information to be provided and fortunately we had written evidence on file that the employer had in fact informed my client that his employer was the Company and I was able to produce correspondence which showed that the gentleman had made it clear that he was acting in response as Managing Director and not as a sole trader.
In any event immediately after the pre-hearing I advised my client to contact ACAS to re-start the Early Conciliation procedure against the individual sole trader in case an issue arose on this point.
In the case of Mrs J Mist v Derby Community Health Services NHS Trust this question about early conciliation and named respondents was considered.
The law requires that in the majority of Employment Tribunal claims an employee must have been through Early Conciliation before their claim will be accepted. This involves contacting ACAS via the online form or telephone to start the process. If no agreement is reached between the parties then the ACAS officer responsible for the case will issue a certificate and it is this certificate which is required by the employee before their claim will be accepted by the Tribunal.
When starting the early conciliation process the employee is required to give various information to the ACAS officer about their potential claim, including the name of their employer. The employer’s detail are recorded on the Employment Tribunal claim form.
Mrs Mist was employed by Derby Hospitals NHS Foundation Trust (Respondent 1) from October 2010 providing rehabilitation exercise programmes to patients. She spent 80% of her time working on one programme (known as phase 3) and 20% on another (known as phase 4).
In January 2014 the contract to provide the phase 3 services was transferred to Derby Community Health Services NHS Trust (Respondent 2). Mrs Mist continued to work on both phase 3 and 4 until 31 March 2014. After this time there was some confusion as to what would be happening with Mrs Mist’s employment and she was only given paperwork and tidying up. Despite raising a grievance seeking confirmation of the transfer of her employment under TUPE no information was forthcoming and she resigned on the 10th April 2014.
On the 1st May 2014 Mrs Mist notified ACAS of her potential claims in accordance with the Early Conciliation process and she named Respondent 1 as her employer. No agreement was reached in the process and so Mrs Mist made various claims to the Employment Tribunal on the 4th July 2014 including claims for constructive unfair dismissal. Although she only named Respondent 1 in her claim she did mention the TUPE transfer and identified Respondent 2 as the employer who won the contract for part of the work she undertook.
After receiving the ET3 response from Respondent 1 Mrs Mist applied to the Employment Tribunal on the 1st September 2014 to add Respondent 2 to the proceedings, and at a telephone hearing on the 4th September 2014 the Employment Judge agreed.
On the 2nd October 2014 Respondent 2 responded to the claim against them and argued that the claim against them was out of time. At the Employment Tribunal they reviewed the applicable time limits and concluded that there was ‘no good explanation why the Claimant failed to do so and thus the unfair dismissal and failure to consult claims were out of time. As for the sex discrimination and part-time worker claims, in the absence of an explanation it was not just and equitable to extend time’. This meant that Mrs Mist’s claim against Respondent 2 could not proceed and so she appealed.
Respondent 2 cross-appealed on the basis (amongst other things) that Mrs Mist had not complied with the mandatory Early Conciliation procedure and the Employment Tribunal had failed to consider this as a relevant factor in their decision.
The Employment Appeal Tribunal decided to allow Mrs Mist’s appeal on the basis that the Employment Tribunal had not applied the relevant legal tests correctly. The Employment Tribunal’s key consideration should have been the injustice to either party in their decision to grant or refuse an amendment to the claim. The Employment Tribunal had placed their emphasis on Mrs Mist’s lack of explanation for why she had not included Respondent 2 at the outset and this was incorrect.
The prejudice to Mrs Mist by not allowing her application to join Respondent 2 has been high and would have prevented her from bringing a claim against a transferee in a TUPE situation, thus leaving her with limited remedy.
With regards to Respondent 2’s cross-appeal the Employment Appeal Tribunal rejected the argument about the procedural requirements of Early Conciliation on the basis that the Employment Tribunal had a discretion to accept the claim despite errors in the name on the Early Conciliation certificate.
Points to note
Helpfully the Employment Appeal Tribunal clarified that the purpose of providing the Respondent’s name when applying to ACAS is to enable ACAS to identify and make contact with the employer and therefore the precise legal title is not required and a trading name could be sufficient. In line with other cases regarding the Early Conciliation process the Employment Appeal Tribunal took a common sense approach and reiterated the fact that the Early Conciliation process is designed to facilitate agreement and discussion between parties in order to try to prevent claims reaching the Tribunal and therefore it should not be overly prescriptive
What action do you need to take?
If you receive a claim form from the Employment Tribunal it is important to get advice early on, and before you submit your defence in case there are valid arguments to be made about the correct Respondent and the time limit for making a claim. It is much easier to deal with these issues at the outset than waiting until further into the process.
Mist v Derby Community Health Services NHS Trust – Employment Appeal Tribunal