United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0284/15/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 28 January 2016

Judgment handed down on 22 March 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

 

 

 

 

 

 

TIC INTERNATIONAL LTD APPELLANT

 

 

 

 

 

MR E ALI RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MRS KATHERINE REECE (Representative) Peninsula Business Services Ltd The Peninsula Victoria Place Manchester M4 4FB
For the Respondent	No appearance or representation by or on behalf of the Respondent

 

 

SUMMARY

JURISIDICTIONAL POINTS - 2002 Act and pre-act requirements

 

The Claimant complied with the early conciliation requirements of the Employment Tribunals Act 1996 section 18A.  The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 apply.  The Claimant had given ACAS the wrong name for his employer but the current address.  When ACAS contacted the address the employer gave their name and entered into discussions.  The ACAS certificate gave the wrong name supplied by the Claimant as did the ET1.  The employer asked to be substituted as Respondent which the Employment Tribunal did.  The Respondent then contended that the early conciliation requirements had not been complied with in relation to them.  The Employment Tribunal dismissed their application that the claim be dismissed. 

 

The Employment Tribunal did not err in holding that the early conciliation requirements had been complied with and that the claim against the substituted Respondent should not be dismissed for lack of jurisdiction.  The Regulations apply to “prospective” Claimants.  Once a claim has been issued, as here, the Claimant is no longer a prospective Claimant.  The Claimant had complied with the procedure in relation to the “the matter” which is the same matter to which the substituted correct Respondent is Respondent.  Drake International Systems Ltd & Others v Blue Arrow Ltd UKEAT/0282/15 applied.

 

THE HONOURABLE MRS JUSTICE SLADE DBE

 

1.                  TIC International Ltd (“TIC”) appeal from the Judgment of an Employment Tribunal sitting in Birmingham, Employment Judge Goodier (“the ET”), sent to the parties on 6 May 2015 the rejection by of its application that the claims made by the Claimant of unfair dismissal, for holiday pay and other payments should be dismissed.  The ET rejected the contention of TIC that the Claimant had failed to comply with the early conciliation requirements of the Employment Tribunal Act 1996 (“ETA”) and the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the ECERP Regulations”) and that therefore the ET lacked jurisdiction to entertain the claim.

 

2.                  TIC were represented before me by Mrs Reece of Peninsula and before the ET by Mr Whitaker also of Peninsula.  The Claimant did not appear nor was he represented at the appeal before me.  A document sent by the Employment Appeal Tribunal (“EAT”) was returned marked “no longer at this address”.  No Respondent’s Answer in the EAT has been lodged.  Mr Ali was represented by counsel before the ET but did not attend.

 

3.                  All the Claimant’s claims were dismissed following a substantive hearing before a different Employment Judge, Employment Judge Camp, in a Judgment sent to the parties on 1 July 2015.  Mrs Reece accepted that the appeal before the EAT was academic as all the Claimant’s claims against TIC had been dismissed.  In an email to the EAT on 29 September 2015 Mrs Reece explained the reason TIC wished to pursue an appeal.  Mrs Reece wrote:

“… Whilst we appreciate that there is no financial advantage to continuing with the appeal, our client [feels] that they will have to declare the fact that this claim was brought, as part of any tendering process.  Our client feels that declaring that the claim as brought (irrespective of the outcome) could adversely affect their tendering prospects but that if the appeal is successful they would be able to legitimately omit the fact of the claim from any such tender.”

 

4.                  TIC made no secret of the fact that the appeal would not determine any live issue in the litigation with the Claimant - there was none.  They wished to do so for their own commercial reasons.  At the outset of the hearing I drew Mrs Reece’s attention to the Judgments of the EAT in Harrod v Ministry of Defence [1981] ICR 8, IMI Yorkshire Imperial Ltd v Olender [1981] ICR 69 and Baber v Superite Tools Ltd [1985] 1CR 189.  As was the case in IMI Yorkshire Imperial Ltd it is important that there is no issue remaining between the parties.  That in itself may well have been sufficient reason to decline to hear the appeal.  However the appeal was listed for a Full Hearing after the sift and it will be determined on the merits.

 

Outline Facts

5.                  The Claimant was employed by TIC from 28 April 2008 until his dismissal for gross misconduct on 13 October 2014.  He was employed as a factory or textile worker in a warehouse/factory in Nechells, Birmingham sorting second-hand clothes.

 

6.                  TIC is a private limited company the shares in which are wholly owned by Islamic Relief Worldwide (“IRW”), a company limited by guarantee.  The ET held at paragraph 4.3 that TIC has the same registered office as IRW, and its shares are owned by IRW.  The main premises of TIC are a warehouse and a yard in Landor Street, Birmingham, at which there are two large signboards one reading “TIC International” and the other “Islamic Relief”.  The vans used by TIC have on their side the words “Islamic Relief” and below them in smaller script a reference to TIC.  From these facts the ET inferred that:

“TIC does not carry on any business other than as in effect a trading arm of IRW”

 

7.                  The Employment Judge held at paragraph 4.2 that there is another charity called Islamic Relief UK which he was told is based in London not Birmingham and is not connected with IRW. 

8.                  The Claimant asserted in his witness statement that:

“TIC International Limited has always been known to me as Islamic Relief UK.”

 

However the ET held that all relevant employment documentation was in the name of TIC not Islamic Relief Worldwide.

 

9.                  At paragraph 4.9 the ET held:

“4.9. The claimant attended a disciplinary hearing on 29 September 2014, the minutes of which named as his employer TIC, and made no mention of IRW (43).  On 13 October 2013 the General Manager of TIC wrote to the claimant on the headed paper of the company informing him of his dismissal (46).  On 20 October 2014 the claimant wrote a letter of appeal against the addressed to the “head of retail, [TIC] …” (47).”

 

10.              On 21 November 2014 the Claimant contacted ACAS by telephone and provided them with information for the purpose of early conciliation about a claim against Islamic Relief UK.  He gave as its address the Landor Street premises of TIC.  On 4 January 2015 ACAS issued an early conciliation certificate to that effect.

 

11.              ACAS contacted IRW in Birmingham.  IRW referred ACAS to Mr Chouhaib, HR and Health and Safety Officer of TIC.  Mr Chouhaib told ACAS that the wrong entity had been named as the prospective Respondent.  TIC instructed employment consultants and they entered into negotiations with counsel for the Claimant.

 

12.              On 30 January 2015 an ET1 claim form was presented to the Tribunal in which the Claimant brought claims of unfair dismissal and non-payment or under-payment of wages and holiday pay.  Islamic Relief UK was named as the Respondent.

 

13.              On 13 March 2015 a response form ET3 was presented by the employment consultants on behalf of TIC International Ltd.  The form disputed the claims and “… pleaded that TIC, which it said was a subsidiary of IRW, had been the Claimant’s employer.  It asked that the name of the Respondent be amended accordingly.”  [4.13].

 

14.              The Tribunal accepted the response form any by letter dated 17 March 2015 asked the Respondent to say by 24 March whether it accepted that the Claimant had complied with the provisions for early conciliation [4.14].

 

15.              On 25 March the employment consultants on behalf of the Respondent sent to the Tribunal an e-mail stating that the Respondent did not accept that the early conciliation requirement had been complied with [4.15].

 

The Decision of the ET

16.              The Employment Judge stated that the early conciliation requirements of ETA sections 18 and 18A are mandatory and go to jurisdiction.  If a Claimant has failed to comply with them then the claim form he presents is one which the Tribunal should not accept.  If it is not rejected under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 12 then it should be struck out [6(b)].

 

17.              The Employment Judge had regard to the fact that when ACAS attempted to contact Islamic Relief UK at Landor Street, Birmingham they quickly learned that the premises were occupied by TIC.  TIC told ACAS that it was the former employer of the Claimant.  Negotiations ensued some of them with the assistance of ACAS.  No settlement was reached and the Claimant presented his claim.  TIC asked the ET to be named as Respondent. 

18.              The Employment Judge held that in this case in circumstances in which:

“11. (g) …

(a) the name given by the claimant to ACAS is entirely different from that of the prospective respondent, yet

(b) he gives the trading address of the prospective respondent,

(c) the premises are only occupied by the prospective respondent,

(d) a party whose name is closely similar to that given by the claimant is the owner of the prospective respondent, so that

(e) when ACAS makes contact using the name and address that the claimant gave, it is immediately in touch with the right party”

giving a purposive interpretation to the Early Conciliation Regulations in the light of the overriding objective, the requirement of early conciliation had been complied with.

 

The Relevant Statutory Provisions

19.              Employment Tribunals Act 1996 (“ETA”):

“18. (1) This section applies in the case of employment tribunal proceedings and claims which could be the subject of employment tribunal proceedings -

…

(b) arising out of a contravention, or alleged contravention, of section 64, 68, 86, 137, 138, 145A, 145B, 146, 168, 168A, 169, 170, 174, 188 or 190 of the Trade Union and Labour Relations (Consolidation) Act 1992,

…

18A. (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

This is subject to subsection (7).

(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.

(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.

(4) If -

(a) during the prescribed period the conciliation officer concludes that a settlement is not possible,

…

the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.

(5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period.

(6) In subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.

…

(8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).

…

(10) In subsections (1) to (7) “prescribed” means prescribed in employment tribunal procedure regulations.”

 

20.              Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the ECERP Regulations”):

“Regulation 2

In these Regulations and in the Schedule—

…

“prospective respondent” means the person who would be the respondent on the claim form which the prospective claimant is considering presenting to an Employment Tribunal;

 

Schedule

1. Satisfying the requirement for early conciliation

To satisfy the requirement for early conciliation, a prospective claimant must -

(a) present a completed early conciliation form to ACAS in accordance with rule 2; or

(b) telephone ACAS in accordance with rule 3.

2. (2) An early conciliation form must contain -

…

(b) the prospective respondent's name and address.

3. (1) A prospective claimant telephoning ACAS for early conciliation must call the telephone number set out on the early conciliation form and tell ACAS -

…

(b) the prospective respondent's name and address.

4. If there is more than one prospective respondent, the prospective claimant must present a separate early conciliation form under rule 2 in respect of each respondent or, in the case of a telephone call made under rule 3, must name each prospective respondent.

…

6. Period for early conciliation

(1) For up to one calendar month starting on the date—

(a) of receipt by ACAS of the early conciliation form presented in accordance with rule 2; or

(b) the prospective claimant telephoned ACAS in accordance with rule 3,

the conciliation officer must endeavour to promote a settlement between the prospective claimant and the prospective respondent.

7. Early conciliation certificate

(1) If at any point during the period for early conciliation, or during any extension of that period, the conciliation officer concludes that a settlement of a dispute, or part of it, is not possible, ACAS must issue an early conciliation certificate.

8. An early conciliation certificate must contain—

…

(b) the name and address of the prospective respondent;

…”

 

21.              Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013:

“Schedule 1

2. Overriding objective

The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly.  Dealing with a case fairly and justly includes, so far as practicable -

…

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.

A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules.  The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.

…

10. Rejection: form not used or failure to supply minimum information

(1) The Tribunal shall reject a claim if -

…

(b) it does not contain all of the following information -

…

(iii) each respondent's name;

…

(c) it does not contain one of the following -

(i) an early conciliation number;

…

 

12. Rejection: substantive defects

(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 -

…

(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies;

…

(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 a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.

…

34. Addition, substitution and removal of parties

The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.”

 

Discussion and Conclusion

22.              Mrs Reece fairly accepted that the ET had the power to amend the title of the proceedings to name the correct Respondent.  She also accepted that the ET can add a Respondent.  This position is consistent with the approach of TIC to the proceedings.  As the Employment Judge recorded in paragraph 4.13 a response form to the wrongly addressed ET1 was presented by the current Respondent, TIC.  TIC said that that company, a subsidiary of IRW, had been the Claimant’s employer.  Not only did TIC ask for the claim form to be amended to name them as a Respondent, they asked for rather than objected to the amendment.

 

23.              The only issue on this appeal is therefore whether the fact that the name of the Respondent on the ACAS certificate was, after the amendment, different from that of the substituted Respondent.  When the ET proceedings were issued the name of the Respondent on the claim form ET1 was the same as that given to ACAS and on the ACAS certificate.

 

24.              Consistently with the proper conduct of an advocate, Mrs Reece drew the Court’s attention to the Judgment of Mr Justice Langstaff, President, in Drake International Systems Ltd & Others v Blue Arrow Ltd UKEAT/0282/15 handed down on 27 January 2016, the day before the hearing of the current appeal.  Mrs Reece agreed that the reasoning in Drake was applicable to the current appeal but did not have instructions to make any concession as to its effect.

 

25.              The Respondents in Drake had been substituted for their parent company who had been named as Respondent when proceedings were issued.  The name of the parent company, not the substituted Respondents, had been given to ACAS by the Claimant.  The early conciliation procedures had been properly completed.

 

26.              Langstaff P made a full analysis of the effect of the early conciliation provisions in a situation in which the original Respondent whose name had been given to ACAS by the Claimant had been substituted.  I gratefully adopt and will not repeat that analysis here.

 

27.              In Drake, as in the appeal by TIC, the claim against the substituted Respondent was the same as that against the Respondent originally named in the ET1 and in respect of which the early conciliation procedure had been completed.

 

28.              Amongst other reasons for holding that proceedings against a substituted Respondent had been properly instituted notwithstanding that the parent company and not the substituted respondent had been named to ACAS in the early conciliation procedure, Langstaff P held:

“Further and separately, the Act and Early Conciliation Regulations speak of a ‘prospective Claimant’ in relation to proceedings which have not yet been instituted.  It makes no sense to take of a ‘prospective’ Claimant once relevant proceedings have been instituted.  Insofar as applications to substitute fresh Respondents to an existing claim is concerned, then if permission is refused, the applicant will be a prospective Claimant in relation to those Respondents: but at the time the application is made, that person is not, since ‘the matter’ is then subject to existing proceedings and will, subject only to the grant or refusal of amendment, either remain the subject of existing proceedings, or become the subject of proceedings yet to be instituted.”

 

29.              The appeal brought by TIC is materially indistinguishable from the decision of Langstaff P in Drake.  I apply the reasoning in that decision not just out of comity but because in my judgment the reasoning and conclusion are clearly right.  The ET did not err in rejecting the argument of the Respondent, TIC, that the ET had no jurisdiction to hear the Claimant’s claim.  The early conciliation procedure had been complied with in relation to the original Respondent in respect of the same “matter”.

 

30.              When the matter came to a Full Hearing the Claimant’s claim was dismissed.  Mrs Reece accepted that this appeal was academic but TIC wished to pursue it as they considered that the fact of the claim against them would have to be disclosed in a tendering process.  As the appeal is dismissed on other grounds the question of abuse of process will not be considered.

 

Disposal

31.              The appeal is dismissed.