The importance of using the correct employer on early conciliation certificates
28th February, 2020
The Employment Appeal Tribunal (EAT) recently upheld an Employment Tribunal's decision that a Claimant cannot add a Respondent to a claim without an early conciliation certificate.
The Claimant, Mr Patel operated an opticians store under Specsavers Optical Group Limited (SOG) a joint-venture model, whereby the store was run by a holding company Skelmersdale Specsavers Limited (SSL) and a trading company Skelmersdale Visionplus Limited (SVL).
On 21 September 2017, the Claimant was summarily dismissed from his role as an optician. He initiated early conciliation proceedings through ACAS and was provided with an Early Conciliation (EC) certificate in respect of the Respondent, SOG.
On 9 February 2018, the Claimant submitted an ET claim for unfair and wrongful dismissal and victimisation. The Claimant named both SOG and SSL as the Respondents.
The claim against SSL was dismissed by a Judge because the Claimant failed to name SSL as a prospective Respondent in the early conciliation procedure. The Claimant asked for a reconsideration of that decision. Following a preliminary hearing, the two outstanding issues for the ET were to reconsider the rejection of the claims against SSL and to decide whether a third Respondent, SVL should be added or substituted as a Respondent in the proceedings.
The ET found that the Claimant had entered into a written contract of employment with the store’s trading company, SVL of which he was a Director. The contract set out the terms and conditions of the Claimant’s employment. The Claimant had also entered into a shareholder agreement with SSL which regulated the parties’ relationships. The shareholder agreement focused on the business activities of the store, including the day-to-day running of the store, the provisions of (and payments for) corporate services and entitlement to retain any distributable profits from the joint-scheme.
The Claimant worked under the control of SVL’s board of directors (which he was a member). The board clearly made key decisions about his employment including resolutions to enter into service contracts and could clearly, dismiss him, should they wish.
On this analysis of the employment relationship, the ET found that the Claimant was not employed by SOG, or, in the alternative, by SOG and SVL jointly, like he had contended, but instead he was employed by SVL as his sole employer. The ET therefore accepted that, due to the complicated nature of the employment relationship, a clerical error was made by the Claimant, naming SSL instead of SVL on the claim form. Nevertheless, the ET refused to exercise its discretion under rule 34 to add or substitute SVL as a respondent
The tribunal recognised that ACAS had not misled the Claimant when responding to questions about the early conciliation procedure but the Claimant had always intended to claim against SVL and SOG, but failed to inform ACAS accordingly.
Following the decision of the ET, the Claimant no longer maintained his argument that he was solely employed by SOG but appealed on the basis that the ET had erred in law by rejecting the argument that he could have been employed by SOG and SVL jointly.
Employment Appeal Tribunal
The EAT established that the ET had not erred in law by rejecting the argument that the Claimant could be jointly employed by SOG and SVL. The EAT recognised that the Claimant was not employed by SOG, did not provide services and was not paid by SOG. Any control or direction SOG exercised was done on behalf of SVL. Further, the EAT referenced the well-established principle in Laugher v Pointer (1826) that one employee cannot simultaneously have two employers.
This case highlights how careful consideration is needed when informing ACAS of the correct employer during early conciliation.
It is also an important reminder for employers who have a number of companies to check that the Claimant has named the correct employing company on the EC certificate. Where the incorrect employer is named, there are strong grounds for striking out a claim, and therefore recognising this from the outset can save time and costs.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.