The Right Respondent – importance of correctly naming a prospective party
ACAS conciliation has been a mandatory pre-claim requirement (http://www.acas.org.uk/index.aspx?articleid=4028 ) 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 has been seen as a 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 apparent than ever.
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. When the Claimant contacted ACAS, they provided the name of the director of their former employer rather than 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 which is potentially liable and therefore the correct Respondent. An individual
director can only be named in very limited claims e.g. 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 error and is a mistake that could easily be made by a Claimant who does not have legal representation. However the Employment Tribunal (“ET”) rejected the claim due to the incorrect name on the Early Conciliation Certificate. Whilst the Claimant appealed the decision, the EAT confirmed that this confusion was not a minor error and so the appeal was rejected – confusing the director and the company is now a major mix up! Essentially, by failing to name the correct Respondent, there has been no valid application for (mandatory) conciliation and so the claimant is barred from claiming in the ET.
Can this 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 an extension to lodge the claim is provided until the end of the early
conciliation process. If during this process, an employee becomes aware that the Respondent has been incorrectly named, then they should re-issue the ACAS form immediately in the correct name to rectify the error.
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.