Mrs L Burman v Mr C Dawson: 1403028/2022
JUDGMENT
UPON the rejection of the claim by Legal Officer King pursuant to rule 12(1)(f) of the Rules on 4 October 2022 AND UPON the claimant’s application for reconsideration of that decision dated 20 October 2022[1]The application for reconsideration was presented out of time. It is just an equitable to extend time to permit the application to be made two days after the time limit expired.[2]The claimant’s application is granted and the claim is accepted as at the date of its submission against Longwall Security Limited[3]The claim against Mr Chris Dawson is rejected as the claimant has not obtained an Early Conciliation Certificate in relation to her dispute with him.REASONS
[1]The claimant presented a claim on 16 September 2022. The respondent identified in the ET1 was Chris Dawson. The claim form was accompanied by an Early Conciliation Certificate (“ECC”) which named the respondent as Longwall Security Ltd. The claimant’s claims were for unfair dismissal and discrimination on the grounds of sex and marriage or civil partnership.[2]On 4 October Legal Officer King rejected the claim stating that “the name of the prospective respondent on the early conciliation certificate is not the same as the name of the respondent on the claim form.”[3]On 4 October 2022 the claim emailed the Tribunal seeking clarification of the rejection, writing, “Can someone explain to me that this all means? I have had no communication from anyone regarding this and do not understand what this refers to, the early reconciliation or my application for tribunal?”[4]On 20 October 2022 in a letter to the claimant the Tribunal provided clarification that the claim had been rejected. The reasons gicen in the letter were as follows, “As set out in the Triubinal’s letter of 4 October 2022, your claim has been rejected as although you have given an early conciliation number in section 2 of the claim form, the name of the prospective Respondent on the Acas Early Conciliation Certificate (Longwall Security Ltd) is not the same as the name of the Respondent on your claim form (Chris Dawson). As set out on the explanatory notes called ‘Claim Rejection – Early Conciliation: Your Questions Answered’ attached to the Tribunal’s email of 4 October 2022 (further copy attached), the name you give for the Respondent in the claim form must be exactly the same as the name for the prospective Respondent on the Acas Early Conciliation Certificate.”[5]The claimant applied for reconsideration of that decision on 20 October 2022, stating “I have spoken with ACAS and explained there has been en error on my part as I was not aware of the specifics of completing the forms. My claim is under Longwall and the named gentleman was the person at the company primarily. I would therefore ask this be reviewed as the tribunal should have been under Longwall Security and it was my inexperience that caused the error.” The Rules[6]Rule 12 provides as follows in so far as is relevant Rejection: substantive defects 12.—(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be— (f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates (2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made error in relation to a name or address and it would not be in the interests of justice to reject the claim. (3) If the claim is rejected, the form shall be returned to the claimant together with a notice of rejection giving the Judge's reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for a reconsideration of the rejection.[7]Rule 13 provides as follows: Reconsideration of rejection 13.—(1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either—(a) the decision to reject was wrong; or(b) the notified defect can be rectified. (2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defect and if the claimant wishes to request a hearing this shall be requested in the application. (3) If the claimant does not request a hearing, or an Employment Judge decides, on considering the application, that the claim shall be accepted in full, the Judge shall determine the application without a hearing. Otherwise the application shall be considered at a hearing attended only by the claimant. (4) If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified.[8]In Mist v Derby Community Health Services NHS Trust UKEAT/0170/15 the EAT held that a failure to consider whether an error in the names of the respondent was a minor error and whether it would not be in the interest of justice to reject the claim, was an error of law, and failure to set out the basis for such a rejection would constitute a failure to provide sufficient reasons [48- 50].[9]Later in the Judgment at [63], [68] and [74,]the EAT considered how the test in Rule 12 should be applied, observing, “The need is to avoid the injustice that can result from undue formality and rigidity (absence of flexibility) in the proceedings. In my judgment, the reference to avoiding formality and seeking flexibility does not just mean avoiding an intimidating formal atmosphere during hearings; it includes the need to avoid elevating form over substance in procedural matters, especially where parties are unrepresented [63] I … read Rule 12(2A) as indicating that the “interests of justice” part of the Rule is a useful pointer to what sort of errors ought to be considered minor. To put the point another way, minor errors are ones that are likely to be such that it will not be in the interests of justice to reject the claim on the strength of them [68] An error will often, in my opinion, be minor if it causes no prejudice to the other side beyond the defeat of what would otherwise be a windfall limitation defence, in a case such as this where, subject to the error, the claim was issued in time and not out of time. [72-74]”[10]Whilst Rule 12 was amended to remove the reference to ‘minor errors’, in my view Mist remains good law; the change in the wording was intended to remove precisely the unmeritorious arguments which had previously been argued as to whether an error in the name of a respondent was minor or not.Conclusion
[11]The decision to reject the claim was made on 4 October 2022. Any application for reconsideration therefore had to be received by 18 October 2022 in accordance with Rule 13. However, the claimant applied for clarification of the decision on 4 October 2022 within the time limit. It was clear that at that stage she did not understand why her claim had been rejected. The Tribunal provided full reasons for the rejection on 20 October 2022 , together with details of how to apply for reconsideration and the claimant applied for reconsideration on 20 October 2022. That application was therefore made two days out of time.[12]Given that the claimant is a litigant in person, it is appropriate to treat her email of 20 October 2022 as containing an application for an extension of time to submit an application for reconsideration; the claimant was not informed in the Tribunbal’s letter of 20 October that such an application was out of time or that she could apply for an extension. It can be inferred from the fact that claimant applied for reconsideration that has she known she needed to apply for an extension of time, she would have done so. Consequently, treating the application for reconsideration as also containing an application for an extension of time accords with the overriding objective to ensure the parties are on an equal footing by avoiding “elevating form over substance in procedural matters” as envisaged in Mist above.[13]The legal officer’s decision to reject the claim on 4 October 2022 contained an error of law: the legal officer had not considered the second limb of the test in Rule 12(2A), namely whether that the claimant made error in relation to a name or address and whether it would not be in the interests of justice to reject the claim.[14]I therefore approach that issue afresh: in my judgment the difference in the name was an error and it is not in the interest of justice to reject the claim as the difference in name causes no prejudice to the respondent beyond the windfall of a limitation argument based on the technicalities of Rule 12.[15]The claim is therefore accepted against Longwall Security Limited. The claimant has not obtained an ACAS ECC in respect of Mr Dawson and therefore the claim against Mr Dawson is rejected. If the claimant wishes to pursue a claim against Mr Dawson she must either obtain an ECC for Mr Dawson and issue a second claim, which may be out of time, or applied to amend the claim to include Mr Dawson as a second respondent.