The Right Respondent – importance of correctly naming a prospective party
ACAS conciliation has been a mandatory pre-claim requirement for more than 3 years, and many employees will often engage with ACAS and their employer without the need for legal representation. Whilst this initial stage is often seen as a simple mechanism to resolve the issue without the need for employment tribunal/court action, and therefore perhaps a less formal route, the importance of getting the form right from the outset is more important than ever.
Failing to identify the prospective Respondent
The Employment Appeal Tribunal (“EAT”) in Giny v SNA Transport LTD (“Giny”) has recently rejected an employee’s claim for failing to correctly identify the prospective Respondent to ACAS.
In this case, when the Claimant contacted ACAS, they provided the name of the director of their former employer, rather than the name of the company itself, SNA Transport Limited. It is often a common misconception that the individuals who were directly involved in the issue should be a party to the proceedings, however, as a separate legal entity, it is the limited company itself which is potentially liable, and therefore the correct Respondent. An individual director can only be named in very limited claims such as discrimination.
When the Claimant in Giny instructed solicitors to lodge their tribunal claim, the Respondent was then correctly named as SNA Transport. On the face of things, this may have appeared like a minor and unimportant error that is a mistake and could easily be made by a Claimant who does not have experienced legal representation. Having said that, the Employment Tribunal (“ET”) rejected the claim in this case due to the incorrect name on the Early Conciliation Certificate.
Whilst the Claimant did appeal the decision, the EAT confirmed that this confusion was in fact not a minor error, and so the appeal was rejected – the thing to take away here is that confusing the director and the company is now a major mix up and seen as a much more serious issue!
Essentially, by failing to name the correct Respondent, there has been no valid application for (mandatory) conciliation, and therefore the claimant is barred from claiming in the ET.
Can naming the wrong Respondent be rectified?
An employee is required to engage ACAS in early conciliation and lodge their claim within 3 months, less one day from the event complained of. However, provided that the conciliation form is submitted prior to the expiry of the 3 month time limit, the ‘clock’ will stop ticking and being counted as an extension to lodge the claim is provided until the end of the early conciliation process. If during this process, an employee becomes aware or realises that the Respondent has been incorrectly named, they should re-issue the ACAS form immediately in the correct name to rectify the error as soon as possible.
If however, the claim has been lodged (with an incorrectly named ACAS certificate) and the limitation period has passed, then Giny will apply, and the employee will be barred from pursuing the case. It follows that any employer receiving a claim form in the correct name, but incorrectly named ACAS form, will therefore have no case to answer.
Get in touch with a specialist solicitor
Our team of specialists have years of extensive experience handling legal matters relating to ACAS Conciliation and Respondents, handling many complex cases successfully.
If you need any further advice or guidance when it comes to ACAS Conciliation and naming the right Respondent, get in touch with one of our specialist solicitors.
How can we help?
When you submit this form an email will be sent to the relevant department who will contact you within 48 hours. If you require urgent advice please call 01202 525333.