It might do. Approach with caution. And precision.
Acas early conciliation is a mandatory requirement if you wish to bring a claim in the Employment Tribunals. The purpose of Acas is to seek to find a resolution to the dispute between an employer and an employee, but sadly, a resolution is not always possible due to a multitude of reasons. Before submitting a claim to the Employment Tribunal, a claimant must obtain an Acas Early Conciliation (EC) certificate and provide the number on the certificate on the ET1 Form that is used to submit a claim online.
In Bickley v John Lewis plc, the claimant’s name on the ET1 form did not match the name on the Acas EC certificate. A legal officer of the Employment Tribunal rejected the claim under rule 12(1)(e) of the Employment Tribunal Rules 2013 because the name did not match the EC certificate. Bickley appealed to the Employment Appeal Tribunal (EAT). John Lewis plc invited the EAT to allow the appeal by consent. The EAT overturned the tribunal’s decision and allowed the claim to proceed.
The claimant presented his claim under the name of Mr Isaac Bickley, but the EC certificate named the claimant as Miss Annabel Bickley. This was because, in the period between doing early conciliation and submitting the claim, the claimant had changed his name by deed poll to reflect the change in gender identity.
Rules 12(1)(e) and 12(2A) of the ET Rules 2013 (now contained in rules 13(1)(f) and 13(4) of the ET Rules 2024) require the tribunal to reject an ET1 where the claimant’s name does not match that given on the EC certificate, unless it is satisfied both that the claimant made an error in relation to a name and that it would not be in the interests of justice to reject the claim. The legal officer in this case had rejected the claim without considering whether both aspects of rule 12(2A) had been satisfied.
Rule 6 of the ET Rules 2013 (now rule 6 of the ET Rules 2024) allows the tribunal a very wide discretion to take any action that is just in the case of non-compliance with other ET Rules. The legal officer knew that the claim concerned gender reassignment discrimination and had erred in law by failing to consider whether it was appropriate to treat the requirements of rule 12(1)(e) as satisfied.
The EAT commented that there were other situations (such as marriage) in which a person may choose to legally change their name.
In order to avoid such an issue, the EAT commented that the claimant could have cited the name on the ET1 as “Mr Isaac Bickley, formerly known as Miss Annabel Bickley”. This way, the requirement for the names on the EC certificate and ET1 to match would have been satisfied. A useful tip for anyone anticipating a similar issue.
The general rule with all things Employment Tribunal is to ensure accuracy and to carefully observe time limits. The tribunal and the appeal tribunal do have a measure of discretion, but the safest way to protect your claim and your position is to ensure accuracy in the first place.
This blog was written by Yavnik Ganguly, Senior Solicitor at didlaw.
