Although tribunal judges have the power to reject a claim if there is a discrepancy between the name of the employer on the claim form and the one that appears on the EC certificate, the EAT confirmed in Balcerzak v George Birchall Service Ltd and anor that even if there is a minor error, tribunals must always ask whether it would be "in the interests of justice to reject the claim".

 

Basic facts

In March 2019, the company dismissed a group of employees by reason of redundancy.

They argued that this was unlawful as their employer had failed to consult with them contrary to section 188 of the Trade Union Labour Relations (Consolidation) Act 1992. However, before issuing a claim for a protective award, they had to go through the process of ACAS Early Conciliation (EC). Having done so, they received a reference number and issued their claim in August 2019.

On 6 November 2020, some 15 months after the claim had been issued, it was rejected by a tribunal judge on the basis that the name of the prospective respondent (in other words, their employer) on the Early Conciliation Certificate was not the same as the name on the claim form (the ET1).

 

Grounds of appeal

The claimants appealed on two main grounds. Firstly, they argued that the tribunal had simply made a mistake and that there was, in fact, no discrepancy between the names.

Secondly, they argued that even if there was a discrepancy, the tribunal should have allowed the claim to proceed under Rule 12(2A) of the Employment Tribunal Rules of Procedure 2013. This states that in the event of a discrepancy, a tribunal judge can allow a claim to continue if it would be “in the interests of justice” to do so.

The claimants argued that it was in the interests of justice to allow their claim to continue given that:

  • The administrators had already conceded that they were very likely to succeed with their claim;
  • By rejecting their claim, they would be deprived of their only legal remedy; and
  • Given that 15 months had passed since they had issued the claim, they would now be substantially out of time to resubmit a rectified claim.

 

EAT decision

The EAT judge allowed the appeal. As far as she could see, there was “absolutely no difference” between the names of the respondents on the claim form and the EC certificate.

She then went on to hold that, even if there had been a difference, the tribunal judge should have considered whether it was appropriate to reject the claim and whether it was “in the interests of justice” to do so.

Noting the points made in Stiopu v Loughran (LELR 763), the EAT judge agreed that before rejecting a claim because of a “minor error”, tribunals should bear in mind that rule 12(2A) is a "rescue provision" designed to prevent claims from being rejected for technical failures, such as mixing up the names of the respondent (or the claimant) in the EC certificate and the ET1.

The EAT repeated the words of the judge in Stipou who held that “The language used in the statute requires the employment judge in every case to ask him or herself the question as to 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". These questions are part and parcel of the overall rule at 12(2A)”.