Tribunal erred by rejecting a gender reassignment claim where the claimant's name differed on the ET1 and early conciliation certificate

Background

In the case of Bickley v John Lewis plc, the claimant brought a claim for gender reassignment discrimination. Between obtaining an early conciliation (EC) certificate and submitting his ET1, he had legally changed his name by deed poll.

As a result, the name on the EC certificate differed from the name on the ET1. The Tribunal rejected the claim under the procedural rules on the basis that the names did not match.

On reconsideration, the Tribunal accepted the claim but only from a later date. This created a potential limitation issue, as the claim may then have been out of time. The claimant appealed to the EAT. The respondent chose not to contest the appeal and invited the EAT to allow the appeal by consent.

EAT decision

The EAT allowed the appeal and substituted a decision that the claim should have been accepted on the original date of presentation.

The EAT held that the Tribunal had erred in law by taking an overly rigid approach to the procedural rules. In particular, it failed to comply with the rules which required it to first consider whether the discrepancy arose from an “error in relation to a name” and whether it was in the interests of justice to allow the claim.

The EAT clarified this concept is broader than simple spelling mistakes or errors of syntax. It can include situations where a claimant has failed to explain a legitimate change of name, such as one made by deed poll.

The Tribunal had also failed to consider its wider case management powers to waive procedural irregularities where it would be just to do so. The EAT emphasised that the procedural rules should be applied in a practical and proportionate way, rather than creating unnecessary technical barriers to genuine claims.

The EAT therefore held that the claim should be treated as validly presented on the original date. The EAT observed that, in its view, the procedural requirement would likely have been satisfied if the claimant had included both his current and former name on the ET1.

Learning points for employers

This decision serves as a reminder of the Tribunal’s obligation to adopt a practical and proportionate approach to procedural requirements. Employers should be cautious about relying on technical defects in ET1 forms.

Name discrepancies between an EC certificate and ET1 may arise for legitimate reasons, including gender transition, marriage, or other personal circumstances. Tribunals are likely to take a practical approach where the discrepancy can be properly explained and there is no real doubt about the identity of the claimant.

For more information or advice, please get in touch with Elizabeth McTeigue in our Employment team.