4 September 2017

Another case on the early conciliation regime and errors

2:05pm

In Chard v Trowbridge Office Cleaning Services Ltd, the EAT held that a tribunal should have found that the difference between the respondent’s name on an early conciliation (EC) certificate and on the subsequent ET1 claim form was a ‘minor error’ under rule 12(2A), such that the claim need not have been rejected. The error consisted of the EC certificate naming the controlling shareholder of the respondent company, rather than the company itself. The EAT approved the discussion of relevant principles in the earlier EAT case Giny v SNA Transport Ltd but reached a different conclusion on essentially the same facts.

The claim was rejected because the respondent’s name on the EC certificate and the ET1 differed, which is a ‘substantive defect’ under rule 12(1)(f) of the Tribunal Rules 2013 (although the tribunal letter informing C of the rejection incorrectly cited a different rule).

C sought reconsideration, arguing that the claim should have been accepted under rule 12(2A), which provides that an employment judge can accept a claim form containing a ‘minor error in relation to a name or address’ if it would not be in the interests of justice to reject the claim. She pointed out that B is the managing director and majority shareholder of TOCS Ltd, that he conducts the day-to-day running of the business, and that, to all intents and purposes, he operates it as a sole trader.

The employment judge confirmed the rejection, noting that the difference between the name of a private individual and that of a company ‘was not a minor error such as a misspelling or an [omission of] part of the title of the respondent’. C appealed to the EAT.

The EAT allowed the appeal. Mr Justice Kerr agreed with the judgment in Giny v SNA Transport Ltd. The issue of ‘minor error’ is one of fact and judgement for the tribunal, that the words are ordinary English words, and that the EAT can only interfere if the decision below is flawed by error of law or perversity.

An error will often be minor if it causes no prejudice to the other side beyond the defeat of what would otherwise be a windfall limitation defence in a case such as this where, subject to the error, the claim was issued in time.