A wrong number, a wrong name and a time limit - Case Round-Up: September 2017

In this month's round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at a trio of cases on wrong information in ET1 Claim Forms and how ACAS early conciliation extends time limits.

Mark Shulman*, Consultant Solicitor at Keystone Law

*ET Rules Information on ET1 Forms **Under Rule 12 (2) of the ET Rules, an ET must reject a claim form for various specified reasons, including that it "does not contain an early conciliation number…". Rule 12(2A) provides an "escape route" for minor errors on a Claim Form in relation to the Claimant's or a Respondent's … name or address and it would not be in the interests of justice to reject the claim".

**Incorrect certificate number on ET1 *Was the inclusion of an incorrect EC Certificate number in an ET1 fatal? Yes under Rule 12, but not in terms of extending time the EAT said in [Adams v British Telecommunications Plc ]()*UKEAT/0342/15/LA (a case with judgment promulgated last year), allowing an appeal to extend time for claims of unfair dismissal and race discrimination.

*Background *The Claimant submitted her ET1 (with claims of unfair dismissal and race discrimination) just in time but entered an incorrect EC certificate number by omitting the last two digits. By the time a new corrected ET1 (with the correct ACAS EC Certificate number) was lodged, it was 2 days out of time and the claims were rejected. The Claimant appealed.

*Unfair dismissal* **The EJ had ruled in relation to the unfair dismissal claim that it was reasonably practicable for the claim form to have been presented in time saying that there was no reason why the claim form could not have contained the correct EC certificate number. The EJ refused to extend time saying that the delay was wholly attributable to the carelessness of the Claimant and her solicitor.

The Claimant contended that the EJ had incorrectly focused on the first claim (which the ET had concluded could and should have been presented in time) and failed to address the second claim and whether it was reasonably practicable to have presented that in time.  The EAT agreed that the first claim in this case was validly rejected by the ET as it had not included a correct EC Certificate number. However, whilst the EJ had made observations as to why it was perfectly practicable to have presented the first complaint in time, she had not addressed the second claim. In effect, the EJ had treated the fact that the first complaint was presented in time (albeit on a defective basis) as excluding the possibility of finding it was not reasonably practicable to present a second claim in time. This was not the law as addressed in [Software Box Ltd v Gannon ]()UKEAT/ 0433/14 when the EAT had held that the fact that a complaint was made within time and then rejected, did not as a matter of principle preclude the consideration of whether a second claim traversing the same ground is one in which the ET should have jurisdiction.

The question for the ET here was not whether the mistake the Claimant made when presenting her first claim was a reasonable one, but whether her mistaken belief (that she had correctly presented the first claim on time and did not therefore need to put in a second claim), was reasonable. In focussing on the first claim to the exclusion of the second claim, the EJ had erred in law. Therefore, the decision on the question whether it was reasonably practicable to present the second claim in time could not stand.

*Race discrimination *With regard to the "just and equitable" extension relating to the race discrimination claim, the EAT confirmed that the ET's discretion is broader than that available under the "not reasonably practicable" route. However, the onus would be on the Claimant to satisfy the ET and the checklist of factors identified in section 33 of the Limitation Act 1980 is likely to be a useful (although not mandatory) guide of factors likely to be relevant for ETs exercising this discretion.

The Claimant's argument was that the EJ left out a material factor in exercising discretion, i.e. the balance of prejudice between the parties and in particular, the prejudice to the Claimant. The EAT agreed. The balance of prejudice was plainly a material factor and significant factor in this case. On the one hand, the Claimant had lost the right to bring a discrimination claim on its merits and on the other hand the short delay caused no actual prejudice to the Respondent in conducting its defence of the claim. Therefore, the failure to take into account a significant factor in the exercise of its discretion was an error of law by the EJ and the decision that it was not just and equitable to extend time could not stand.

*Disposal *Rather than have the case remitted to the ET, the parties invited the EAT to dispose of matters itself (as permitted by section 35(1) of the Employment Tribunals Act 1996). The EAT agreed to proceed accordingly and accepted that the Claimant had made a "genuine and unintentional mistake" when submitting the first Claim Form with the wrong ACAS EC number; that was the impediment to her presenting the second claim on time. The EAT was persuaded that it was therefore not reasonably practicable for her to present that second claim in time and accordingly time should be extended in respect of the unfair dismissal claim.

With regard to the discrimination claim, the critical factor was prejudice. The Claimant would be deprived of any avenue for making her complaint of unlawful race discrimination because of a minor error in the EC Certificate number, which itself caused no prejudice to the Respondent. It was just and equitable to extend time for the presentation of the unlawful discrimination claims.

**Error in Respondent's name *The EAT's decision in [Chard v Trowbridge Office Cleaning Services Ltd ]() *UKEAT/0254/16/DM is another piece of satellite litigation in which the early conciliation provisions were considered. Was the incorrect name of the employer given by the Claimant for an EC Certificate fatal? No, said the EAT – it was a minor error and not in the interests of justice to reject the claim.

Background There was what the Claimant described as a "catalogue of errors" following the Claimant's summary dismissal for gross misconduct. She named the controlling shareholder of the Respondent Company ("Allister Belcher"), instead of naming the employing Respondent - a limited company - for the EC Certificate. She then engaged a solicitor, but the incorrectly named Respondent on the EC Certificate was not spotted. The solicitor then filed a claim with an ET1 form, correctly naming the limited company as the Respondent. The ET then rejected the claim stating that it was:

"…returning your claim form because you have not complied with the requirement at rule 10(1)(c) of the above Rules, because the Respondent named on the claim form is different to that named on the Early Conciliation Certificate".

When the error was spotted, the Claimant's solicitor applied for and submitted another EC certificate, this time naming the limited company as the prospective Respondent and then wrote to the ET requesting reconsideration of the decision to reject the claim, citing the Rule 12(2A) "escape route" mentioned above on the basis that the Claimant made a minor error in relation to "a name or address and it would not be in the interests of justice to reject the claim".

At a subsequent hearing the ET ruled that it was not a minor error (the EC Certificate referred to a private individual as the prospective Respondent, not the employing Company) and decided that the claim was in any event by then out of time in view of the delay until the error had been rectified (which date was after expiry of the 3-month time limit). The EJ also concluded that it had been reasonably practicable for the claim to have been presented in time because the Claimant's solicitors had been at fault for the oversight and it would have been possible to obtain a second corrected EC certificate before expiry of the limitation period. The Claimant appealed.

Before the EAT the issues outlined below were considered.

Ultra vires Firstly, there was an issue as to whether the decision to reject the claim on paper without giving a hearing ultra vires? It was submitted that in the light of the decision by the EAT in [Trustees of the William Jones's Schools Foundation v Parry]() [2016] ICR 1140, the procedure whereby compliance with Rule 12(1) of the Rules of Procedure is policed by means of a written paper exercise involving the Claimant only and without an oral hearing, was ultra vires and not authorised by the relevant provisions in the enabling legislation. In that case Laing J had envisaged that the procedure in Rule 27 of the ET Rules would be an appropriate mechanism for enforcing the requirements in Rule 12(1).

The EAT in the present appeal decided to proceed on the assumption that the decision in Parry was correct. Accordingly, on that basis, the ultra vires ground of appeal was well-founded and it would be undesirable to say more than that given that an appeal was pending before the Court of Appeal.

Minor error Was the error correctly described by the ET at a subsequent hearing as "more than minor"? The EAT confirmed that what constitutes a "minor error" is one of fact and judgement for the ET. The overriding objective in the ET Rules (which includes "avoiding unnecessary formality and seeking flexibility in the proceedings") extended to avoiding elevating form over substance in procedural matters, especially where parties were unrepresented. Minor errors are ones that are likely to be such that it will not be in the interests of justice to reject the claim on the strength of them. The EJ never got as far as the interests of justice. It appeared that was because the EJ did not think that the error was minor (limiting "minor" to matters such as misspelling or an omitting part of the title of the Respondent).

The parties invited the EAT not to remit the case and to decide the issues itself. It decided in the present case that it was "incontestable" that the error was minor. An error will often be minor if it causes no prejudice to the other side beyond what would otherwise be a "windfall limitation defence". If the ET1 claim form had named Mr Belcher personally, the claim would have been valid, and in time. An application to amend, even outside the limitation period, so as to correct the name of the Respondent to that of the company, could then have been made and in line with common practice would probably have been granted, even after expiry of the three-month limitation period.

Accordingly, the interests of justice required that the claim should not be rejected and was to proceed on its merits.

**EC Certificates and time limits *Was there a compelling reason for a full hearing on whether a claim was made in time, having regard to possible uncertainty relating to the ACAS EC provisions and their effect on extending time? Yes, said the EAT at a preliminary hearing in [Luton Borough Council v Haque ]()*UKEATPA/0260/17/JOJ.

The issue was whether various ET claims were made in time. Section 207B of the ERA 1996 provides for the extension of time limits in order to facilitate ACAS conciliation before the institution of ET proceedings. s207B(3) and (4) reads as follows:

(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

*Background *The Claimant's effective date of termination was 20 June 2016 and he went to ACAS on 22 July 2016 (which was the date of notification - Day A). The early conciliation certificate was issued on 22 August 2016 - Day B. The three months' statutory time limit expired on 19 September 2016. The period of conciliation was 31 days. The claim form was presented to the ET on 18 October 2016 and the Respondent contended that the various claims were out of time.

The dispute was whether the 31 days period of conciliation extended the time limit from 19 September to 20 October (i.e. 31 days after the statutory time limit of 19 September) or whether the effect of s207B(4) ERA meant that time expired one month after Day B (i.e. on 22 September), in which case the claim would be out of time. The Respondent contended that there could not be two different time limits and that one must take precedence (in this case section 207B(4)). It was suggested that as a matter of statutory construction, clear specific provisions override general ones. Also, as subsection (4) was the later provision, that applied because where there is conflict between two statutory provisions, there is a principle that the later one prevails.

The ET rejected those arguments as such reasoning had been rejected in another ET case (Booth v Pasta King UK Ltd (15 October 2014) Leeds Employment Tribunal, Case number 1401231/2014).

Wrong approach On appeal to the EAT, the Respondent in the present case argued that (i) the Pasta King case was not a binding precedent, and (ii) that in any event, the Pasta King reasoning did not fully engage with the way in which the Respondent was putting its point in this case.

The EAT rejected the first point as a "bad point": the ET was entitled to adopt the reasoning provided by another ET. At the sift stage at the EAT, HHJ Richardson had opined that the Respondent's second argument was "plainly wrong". Section 207B(4) did not apply in every case - it said so explicitly. It applies only where (apart from subsection 207B(4) itself) the time limit would expire during the period beginning with day A and ending one month after day B. That was not the case here. By operation of section 207B(3) the time limit expired nearly 2 months after day B. In the present case the time limit for unfair dismissal would have expired on 19 September; but the period beginning after day A and ending with day B is not to be counted. That period was 31 days. Therefore, adding 31 days after 19 September meant that the time limit expired on 20 October. The argument in the Notice of Appeal involved reading section 207B(4) as if it said "apart from this section". But it does not say that; it states "apart from this subsection" (emphasis added). It was therefore entirely plain that 207B(4) did not "in some mysterious way" take precedence over section 207B(3).

However, having been informed that the Respondent's line of argument was increasingly being taken before ETs and informing the advice given, for example by CABs, the EAT considered that there was a compelling reason for leave to be given for this matter to proceed: it was a point that needed to be clarified sooner rather than later after full argument at appellate level.

The EAT requested an expedited appeal (to be heard together with any other appeals raising the same point, if there were any). A costs warning was also highlighted in that if ultimately the Respondent's argument was found (as HHJ Richardson suspected) to be plainly wrong, then the Respondent might not be surprised if it then faced a costs application.

Watch this space for an update in due course!

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.

Published: 08/09/2017 10:06

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