Isaac Bickley v John Lewis Plc

Where an ET1 and early-conciliation certificate record different names because the claimant changed name between them, the tribunal must consider the exception for an error in relation to a name. That expression extends beyond a wrong or misspelt name. It can include a failure to give a former name and explain the change.

The exception in Rule 12(2A) requires both an error relating to a name or address and that rejection would not serve the interests of justice. Independently, the tribunal must consider its wide power to waive or vary procedural requirements where it is just to do so. A technical mismatch should not create an artificial barrier to a genuine claim.

The claimant obtained an early-conciliation certificate in his former name, then changed his name by deed poll before presenting an ET1 alleging discrimination because of gender reassignment. A Legal Officer rejected the ET1 because the name on it did not match the prospective claimant’s name on the certificate.

On reconsideration, an Employment Judge accepted the claim only from 25 September 2024. That date potentially made the claim out of time. The claimant appealed against the original rejection. The respondent did not resist the appeal and agreed that it should be allowed by consent.

The central issue was whether the Legal Officer had erred by rejecting the claim without considering the name-error exception and the tribunal’s power to waive procedural non-compliance.

1. Appeal allowed by consent. The EAT was satisfied, consistently with the approach in J Sainsbury Plc v Moger [1994] ICR 800, that there was a good reason to allow the appeal without a hearing. The error was discrete, the parties understood the consequences, and the proper disposal was clear.

2. Rule 12(2A) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required the decision-maker to consider two cumulative matters before rejecting a claim for a name mismatch: whether the claimant made an error in relation to a name or address, and whether rejection would be in the interests of justice.

3. An error in relation to a name has a wider meaning than supplying an incorrect, misspelt or syntactically defective name. The claimant had correctly stated his then legal name on the ET1, but failed to identify his former name and explain the intervening deed-poll change. That was capable of being an error in relation to a name because Rule 12(1)(e) required correspondence with the name on the early-conciliation certificate.

4. The Legal Officer erred in law by rejecting the ET1 without considering Rule 12(2A), including whether that error had occurred. The discrimination complaint on the face of the ET1 made the context apparent.

5. Alternatively, Rule 6 gave a wide power to treat the Rule 12(1)(e) requirement as satisfied where that was just. The Legal Officer should have considered that power. The discrepancy arose solely because the claimant’s legal name changed between the certificate and the ET1.

6. There was only one permissible outcome. The EAT substituted a decision accepting the ET1 as presented on 9 July 2024.

• Employment Appeal Tribunal: allowed the appeal by consent and substituted acceptance of the ET1 as presented on 9 July 2024.
• Employment Tribunal reconsideration: REJ Foxwell accepted the claim only from 25 September 2024 after treating the appeal as an application under the Employment Tribunal Procedure Rules 2024. That decision was not appealed.
• Employment Tribunal: a Legal Officer rejected the ET1 on 16 August 2024 because the claimant’s name did not match the name on the early-conciliation certificate.