ACAS conciliation: importance of conciliating against correct respondent

The Employment Appeal Tribunal upheld an employment tribunal’s refusal to add a respondent where the claimant had not obtained an ACAS early conciliation (“EC”) certificate for that respondent.

Facts

In Patel v Specsavers Optical Group Ltd, Mr Patel worked in a Specsavers store which operated as a joint venture between him (as an optician) and Specsavers Optical Group Limited (SOG).

The store was run by two companies: a holding company, Skelmersdale Specsavers Limited (SSL) and a trading company, Skelmersdale Visionplus Limited (SVL).  Mr Patel’s employment contract was with SVL. He also had a shareholders’ agreement with SSL.

Mr Patel issues tribunal proceedings

Following his dismissal, Mr Patel commenced ACAS early conciliation against SOG and obtained an EC certificate. He then issued a claim in the employment tribunal against SOG and also against SSL.

Tribunal dismissed claim against SSL and refused addition of SVL 

The tribunal dismissed the claim against SSL as Mr Patel had not named SSL during early conciliation.

Mr Patel asked the tribunal to reconsider its judgment. The tribunal accepted he had incorrectly named SSL on the ET1 and had meant to name his employer, SVL. However, it refused to allow him to add or substitute SVL as a respondent. It noted Mr Patel had always intended to claim against both SVL and SOG, but only informed ACAS about SOG. This was not a minor error in early conciliation, but a complete failure to comply with the required process. Since Mr Patel was not employed by SOG, his claim failed.

Mr Patel appeals

Mr Patel appealed. He argued he had informed ACAS he wished to claim against two respondents and the tribunal’s finding that he had not was perverse. He also said that the Tribunal’s written reasons on this point differed from the oral reasons given on the day.   

Employment Appeal Tribunal rejects appeal 

Mr Patel’s appeal failed. The Employment Appeal Tribunal ruled that the tribunal had not made an error of law when it refused to add or substitute SVL. It followed that as Mr Patel had been employed by SVL and had not conciliated against that company, his claim failed.

Comment

This case emphasises the importance of identifying the correct respondent(s) during early conciliation. A failure to do this at the outset can result in a claim falling at the first hurdle. Where there is more than one potential employer, it is sensible to conciliate against them all.

In addition, where there is more than one respondent (for example if a discrimination claim is brought against an individual as well as the employer), they must all be named during early conciliation.