W Balcerzak v George Birchall Service Limited & Anor

An Employment Tribunal must not reject a claim for a supposed mismatch between the respondent named in the early conciliation certificate and the ET1 where the names are in fact identical.

When considering compliance with early conciliation requirements under Rule 12, an Employment Judge should identify any actual discrepancy and consider both its nature and whether rejection would be in the interests of justice. The rule operates to prevent rejection for a minor naming or address error where rejection would be unjust.

The claimants were dismissed for redundancy shortly before the first respondent entered administration. They brought Employment Tribunal proceedings seeking a protective award under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, alleging that there had been no consultation.

After the claim had been issued, the Tribunal rejected it on the stated ground that the respondent named on the early conciliation certificate differed from that named on the ET1. The claimants appealed, contending first that there was no discrepancy and, alternatively, that the Tribunal had failed to consider the interests-of-justice discretion under Rule 12 of the Employment Tribunal Rules of Procedure 2013.

1. Appeal allowed. The early conciliation certificate and the ET1 both named “George Birchall Service Limited”. There was no discrepancy. The Tribunal therefore erred in rejecting the claim on the stated basis.

2. The appeal succeeded on the first ground. It was unnecessary to decide the alternative ground. Nevertheless, the EAT considered that the claimants’ submissions on Rule 12 were well made in principle.

3. Following the approach in Stiopu v Loughran, the Rule 12 safeguard requires an Employment Judge considering a purported naming discrepancy to address whether there is an error concerning a name or address, whether it is minor, and whether rejection would be in the interests of justice. This provides protection against rejection for a technical naming failure.

4. The EAT stated that it is good practice for Employment Judges to apply that sequence of questions when assessing compliance with the early conciliation provisions.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s rejection of the claim.
• Employment Tribunal: rejected the claim on the basis of an asserted difference between the respondent’s name on the early conciliation certificate and on the ET1.