Chard v Trowbridge Office Cleaning Services Ltd

Whether an error in an early conciliation certificate is a minor error is a question of fact and degree. It is not confined to spelling mistakes or typographical errors. Confusing an individual with a company controlled by that individual may constitute a minor error, particularly where the address and practical point of contact are the same and the respondent suffers no prejudice.

The minor-error and interests-of-justice provisions should be read consistently with the overriding objective, including flexibility and avoidance of undue formality. The interests-of-justice limb helps identify the types of error which should be treated as minor. A claim should not be rejected merely to confer a windfall limitation defence where it was otherwise issued in time.

The claimant brought claims arising from her dismissal after 27 years’ employment. Her early conciliation certificate named the respondent’s controlling shareholder rather than the employing company, although her claim form correctly named the company.

The Employment Tribunal rejected the claim and, following reconsideration, treated it as presented on 4 January 2016. It then dismissed the claims as out of time, finding that it had been reasonably practicable to present them within the limitation period.

The claimant appealed on procedural grounds, the interpretation of the minor-error provisions, and the refusal to extend time. The parties agreed that the Appeal Tribunal could decide the minor-error and interests-of-justice issues under section 35(1) of the Employment Tribunals Act 1996.

1. Appeal allowed. The initial paper rejection was likely a nullity under the reasoning in Trustees of the William Jones’s Schools Foundation v Parry [2016] ICR 1140. The later oral hearing was not materially equivalent to the procedure contemplated by that decision.
2. The rejection and reconsideration notices were also unsatisfactory. They cited the wrong Rules, failed to address the minor-error issue, and did not explain why the close relationship between the individual named and the employing company did not matter.
3. The minor-error issue is one of fact and judgment for the Employment Tribunal. An error confusing an individual with a company controlled by that individual can be minor. The Employment Judge is not limited to spelling mistakes, typographical errors, or incomplete company names.
4. Rule 12(2A) should be read with the overriding objective. Its reference to the interests of justice is a useful pointer to the errors which ought to be treated as minor, rather than imposing a rigid two-stage inquiry detached from that consideration. The approach must avoid elevating form over substance, especially where a party is unrepresented.
5. On the facts, the error was clearly minor. The same address and controlling person meant that communication and conciliation were not impeded. The respondent knew from the pre-claim letter that the intended claim was against the company, and suffered no prejudice beyond losing a windfall limitation defence. The claim had otherwise been issued in time and was to proceed on its merits.
6. The alternative ground concerning reasonable practicability was not made out. Adams v British Telecommunications plc [2017] ICR 382 established that the issue remains one of fact; an earlier defective claim does not automatically show that a corrected claim could have been presented in time. The Employment Judge had applied that approach correctly.

• Employment Appeal Tribunal: allowed the appeal and substituted a decision that the claim was in time and should proceed on its merits.
• Employment Tribunal: rejected the claim following the mismatch between the early conciliation certificate and claim form, and later dismissed it as out of time.