Anthony Chowles t/a Granary Pine v West
The tribunal rules state that when a complaint is received, a copy must be sent to the employer against whom it has been made. In Anthony Chowles t/a Granary Pine v West, the Employment Appeal Tribunal (EAT) said that if a complainant puts the wrong name and address on it, the claim form must be deemed not to have been sent at all.
Basic facts
Mr West had worked for Mr Chowles (who traded as Granary Pine) for 16 years until he was dismissed in March 2007. He lodged a grievance, but got no reply and so submitted an ET1 form to the employment tribunal.
However, he made a couple of mistakes on the form lodging his complaint in that he recorded his employer’s name as Mr Charles and got the postcode wrong.
The tribunal duly sent the claim to the person named on the form at the address he had provided and, after getting no response, issued notice of a hearing which took place on 17 August 2007.
In what is known as a default judgement (because the employer did not attend), the judge found in Mr West’s favour and ordered “Mr Charles” to pay £18,310 for unfair dismissal and £423 for outstanding holiday pay.
Mr Chowles then became aware of the proceedings and wrote to the tribunal on 1 February 2008, saying that he had not received any notification of the hearing.
The judge ordered a review under rule 33 of the regulations governing tribunal procedure to review his decision out of time, but decided in June 2008 that the original decision should stand. The employer appealed.
Relevant law
Rule 2 of the regulations governing employment tribunals state that, on receipt of a complaint, the tribunal must send a copy to each respondent, keeping a record of the date it was sent and giving them information about how to present their response.
Under rule 8, the employment judge can issue a default judgement if the employer does not respond to the complaint within the required time period. Rule 33 allows for a default judgement to be reviewed within 14 days of it being sent to the parties which can be extended if the judge thinks it “just and equitable to do so”.
EAT decision
The EAT said that it was a fundamental requirement under rule 2 for the tribunal to send the proceedings to the employer. In this case, it said that the complaint was sent to Mr Charles who was not the respondent. Therefore no claim had ever been sent to Mr Chowles
It concluded, therefore, that it was irrelevant whether or not Mr Chowles was telling the truth when he said he did not receive the complaint, for the simple reason that, under the rules, the document had not been sent to him.
As there had been a “major procedural irregularity in this case”, the judge set aside the default judgment, the review judgment and the award of compensation and ordered that the case be sent to a full hearing on the merits.
Comment
Although this decision may seem perfectly sensible at a superficial level (claimants should just get the name and address of their employer correct before sending in the ET1), things are not as straightforward as they might seem.
First of all, the EAT in Chowles described the errors as “a major procedural irregularity”, rendering the ET1 as too defective to serve (although getting the postcode wrong does not mean it could not be delivered and some ET1s have no postcode on them at all). However, in other decisions (such as Cummings v Scholarest, Richardson v U Mole Ltd and Hamling v Coxlease School) the ET1 was held to be valid and capable of correction.
Secondly, the decision could lead to unfairness. For instance, a claimant could lodge an ET1 with a minor error (Smith, not Smyth). The respondent receives the form but ignores it until they get a judgement against them. They then object to the whole process, requiring the claimant to start all over again.
Finally, the decision gives an advantage to the unscrupulous. For instance, when the claimant does not know the identity of their employer because they were never given a section one statement of particulars of employment under the Employment Rights Act 1996. Or where the structures of the company are so elaborate and confusing that it is virtually impossible to ascertain the correct name of their employer.
This decision is right for serious errors but these were not serious.