Stiopu v Loughran EA-2019-000752-BA

Appeal against the rejection of the Claimant's claim for holiday pay and other unpaid monies. Appeal allowed.

The Claimant's claim for unpaid holiday pay and other money was rejected by the ET because the name of the Respondent on the claim form is different from the name on the ACAS certificate. The Claimant appealed on the grounds that (1) the ET erred in law by failing to consider any of the factors that it is required to consider pursuant to rule 12(2A) before rejecting a claim pursuant to rule 12(1)(d) or (e), Employment Tribunals Rules of Procedure (Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) ("the 2013 Regulations"); (2) the ET erred in failing to give effect to the overriding objective in interpreting and/or exercising the power given to it by rules 12(1)(e) and 2A; (3) in the alternative, if the ET considered the factors set out at grounds (1) and (2) above, it failed to provide its reasons for rejecting the claim in the light of these factors, as required by rule 12(3).

The EAT allowed the appeal. Rule 12(2A) is a “rescue provision”, designed to prevent claims from being rejected for technical failures to use the correct name of the respondent in the early conciliation certificate and the ET1. In every case where rule 12(1)(f) may apply, the employment judge should ask him or herself the question as to whether there is a “minor error” in relation to a name or address and whether it would or would not “be in the interests of justice to reject the claim. In the instant case, there was material available to the ET to suggest, or indicate, that a “minor error” could have been made.

Published: 16/12/2021 14:29

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