ACAS Early Conciliation - the Importance of Getting the Parties Right

ACAS Early Conciliation

Other than in very limited circumstances, parties have a mandatory duty to attempt Early Conciliation (EC) of a dispute through ACAS before a claim can be issued in the Employment Tribunal (ET). If a settlement cannot be reached during the EC period, ACAS must issue a certificate confirming that the mandatory requirement has been complied with. A claimant is then free to present their claim to the ET.

A claim will be rejected by an ET if the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC certificate "unless the judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim."

Giny v SNA Transport Limited

Mr Giny was employed by SNA Transport Ltd (SNA). Mr Ahmed was SNA's sole Director.

Following alleged bullying by Mr Ahmed and members of his family, Mr Giny resigned and sought to bring several claims against his former employer including constructive dismissal. One of his complaints was that he had not been provided with a written statement of terms.

Before taking legal advice, Mr Giny provided ACAS with Mr Ahmed's name as his employer, (instead of SNA). He did however provide the correct address for the company.

After taking legal advice, he then issued his ET1 claim form with SNA correctly named as respondent.

The ET rejected his claim stating that it had no jurisdiction as the prospective respondent's name in the EC certificate differed to the name in the claim form. It held that the difference in the name given on the ET1 was more than a minor error.

The Employment Appeal Tribunal upheld this decision.

Best Practice

This would seem to be quite a harsh decision, given that one of Mr Giny's complaints was that he had not been provided with a written statement of employment terms and he was unrepresented at the time of contacting ACAS.

In the case of Mist v Derby Community Health Services NHS Trust, the EAT previously held that the discrepancy between the name of the prospective respondent given at EC stage (The Royal Derby Hospital) and on the claim form (Derby Community Health Services NHS Trust) was a minor error, which did not prevent the tribunal from accepting the claim.

Arguably the difference in this case was more stark. However, in reaching its decision, the EAT notably rejected the argument that the discrepancy between the names of a natural person (Mr Ahmed) and a legal person (SNA), could never as a matter of law be considered to be a "minor error".

For more information, please contact Eleanor Boyd in our Employment Law team on 0207 665 0940.