Mr D McCoy v First Greater Western Ltd: 1405045/2020
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The judgment of the tribunal is that the claimant’s application for reconsideration is granted and the claim form is accepted with effect from 16 October 2020.REASONS
[1]The Claimant applied for reconsideration of the letter from the tribunal dated 7 October 2020, under which the Claimant was notified of the tribunal's decision that the claim had been rejected. The name of the Respondent on the Early Conciliation Certificate was ‘First Group plc. GWR’. The name of the Respondent on the claim form was ‘First Greater Western Limited’. Both entities had the same address.[2]On 16 October 2020, the Claimant applied for a reconsideration of the decision to reject the claim. It was explained that the Claimant, at the time of commencing early conciliation, was a litigant in person and subsequently instructed Essential Employment Law Services Limited to act on his behalf, who identified that the correct name for the Respondent was First Greater Western Limited, which was part of First Group plc and was more commonly known by its brand GWR. The letters received by the Claimant in relation to his disciplinary hearing had ‘GWR’ as the name of the organisation in the letter head, and the name ‘First Greater Western Limited’ was in small print at the foot of the letter. The Claimant thought that he was employed by GWR. It was suggested that this was a minor error and reliance was placed on Mist v Derby Community Health Service NHS Trust UKEAT/-170/15/MC.[3]On 19 October 2020, the Claimant amended the application in the light of the changes to the Employment Tribunal Rules which took effect on 8 October 2020.[4]On 18 November 2020, the Claimant chased the progress of his application and said that an appeal had been filed at the Employment Appeal Tribunal.[5]On 31 January 2021, the Claimant chased the application against and said that EAT had asked what the result of the application was.[6]On 2 February 2021 the application was referred to me with an explanation that it had been missed. I assume that it was for reasons relating to an increased workload and pressure on the Tribunal Administration, which cannot have been helped by the effect of the Covid-19 pandemic.[7]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”).[8]A decision not to accept a claim under Rule 12 can be reconsidered in accordance with Rule 13. Under Rule 13(2) an application for reconsideration under Rule 13 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit and post-dated the change in the rules.[9]Rule 12 provides (1) The staff of the tribunal office shall refer a claim 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 [an] error in relation to a name or address and it would not be in the interests of justice to reject the claim.[10]The grounds for reconsideration are only those set out in Rule 13(1), namely that either(a) the decision to reject it was wrong; or(b) the notified defect can be rectified.[11]The grounds relied upon by the claimant is that he made an error in the name of the Respondent.[12]Applying these principles in this case, the application to reconsider was made after the change in rules from a reference to “a minor error” to “an error” and the application should be considered in the light of the amended rules. The Claimant, who was a litigant in person at the time of notifying ACAS about the dispute, had received correspondence from the Respondent which was headed ‘GWR’. GWR is also the brand under which the Respondent operates its railway franchises. The actual name of the Respondent is in small print at the foot of the letter and after the name and signature of the person signing it. Great Western Railway Limited is part of the First Group plc group of companies. I accepted that the Clamant had made an error in correctly identifying the name of the Respondent and that the claim was directed to the correct entity. The Respondent is part of a complex group of companies, which would make it difficult for a litigant in person to identify the correct entity. It is also significant conciliation took place with the parent company. The prejudice to the Claimant outweighs that to the Respondent. In the circumstances of this case, it would not be in the interests of justice to reject the claim.[13]The reason that that there had been an error was not communicated to the Tribunal until 16 October 2020 and therefore the claim was accepted from that date.[1]The Claimant applied for reconsideration of the letter from the Tribunal dated 7 October 2020, under which the Claimant was notified of the Tribunal's decision that the claim had been rejected. The name of the Respondent on the Early Conciliation Certificate was ‘First Group plc. GWR’. The name of the Respondent on the claim form was ‘First Greater Western Limited’. Both entities had the same address. The Claimant was represented by a firm of solicitors at the time of presentation of the claim and when the application for a reconsideration was made. That application was considered on 2 February 2021 and the application the decision to reject the claim was reconsidered and the claim was accepted with effect from 16 October 2016. The Claimant is referred to that earlier Judgment, which is appended hereto, and it should be read in conjunction with this Judgment[2]On 25 February 2021, the Claimant applied for a reconsideration of the Judgment reconsidering the original rejection. The Claimant set out in its application that the original application had been on the basis that the decision to reject was wrong in that it ran contrary to the discretion given in rule 12 (2A) of the Employment Tribunal Rules of procedure which provided “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 [an] error in relation to a name or address and it would not be in the interests of justice to reject the claim.” It was emphasised that the application was made on the basis that the decision to reject was wrong. It is submitted that the date the original application was made was not the date of rectification because rectification of the certificate was not possible.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. Under Rule 70 the Tribunal may reconsider any Judgment on its own initiative.[4]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[5]S. 12(2A) of the Employment Tribunal rules of procedure was amended with effect from 8 October 2020 and originally provided, “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 a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.” (my emphasis).[6]The decision to reject the claim was made on 2 October 2020, but it was not communicated to the Claimant until 7 October 2020. The decision was made under the pre-8 October 2020 formulation of the rules. The name of the potential Respondent on the ACAS certificate was FirstGroup plc and the name of the Respondent on the claim form was First Greater Western Limited. They are both are distinct corporate legal entities. Conciliation had therefore taken place with a different legal entity to that named on the claim form. This was not a minor error in the name but an error naming entirely different entities. It was relevant that the Claimant was represented by a firm of solicitors when the claim was presented. At the time of the original decision to reject the claim, the pre- 8 October 2020 version of the rule was applied, and the decision was not wrong.[7]When the application to reconsider the rejection was made, the rules had changed. There was not an explanation in the claim form that an error in the identity of the name of the Respondent had occurred, and the first time it was apparent was in the application. It would be a fiction to apply the reasoning under the new formulation, to a decision taken under the previous formulation of the rules and say that the claim should be accepted as of the date of presentation. It was not until the Claimant provided his explanation and the current formulation of the rules was applied that the claim could be accepted.[8]In the circumstances, the original defect was more than minor and, under the rules prevailing at the time the claim was presented, it had to be rejected. After the change in the rules, the test was less strict, and the claim was accepted from the date of the application and explanation of the error. It was in the interests of justice to reconsider the decision, however I was not persuaded that the decision was wrong and the decision on 2 February 2021 is confirmed.[9]The Claimant’s application for a reconsideration and to vary the date of acceptance of the claim is refused.