Labour & European Law Review Weekly Issue 461 16 March 2016
The law requires prospective tribunal claimants to go through a process of early conciliation (EC) in order to receive an Acas early conciliation certificate before lodging a claim. In Mist v Derby Community Health Services NHS Trust, the Employment Appeal Tribunal (EAT) held that claimants do not have to go through the process again when they want to add another respondent to an existing claim.
Ms Mist, a qualified rehabilitation instructor, worked on two different exercise programmes for patients known as phase 3 and phase 4. In January 2014 it was decided to award the contract to provide the phase 3 service on which she spent 80 per cent of her time to another provider.
After resigning in April 2014, she lodged a claim for constructive unfair dismissal, unfair dismissal under the Transfer of Undertakings (Protection of Employment Regulations) 2006 (TUPE) and a failure to inform and consult under Regulation 15 of TUPE.
Although she only named her original employer on the claim form (ET1), she made clear that she considered that TUPE applied and identified Derby Community Health Services (DCHS) as the entity that had won the tender to provide phase 3. However, she did not name them as the second respondent on the ET1. She later applied to add them as a respondent on 1 September 2014.
At a case management preliminary hearing the employment judge allowed Ms Mist’s application to add DCHS as a respondent. DCHS argued that the tribunal did not have jurisdiction to hear her claim because she was out of time. In addition, as it did not start to provide the phase 3 service until June 2014, she was not employed immediately before the transfer and her employment had not transferred over to them.
The tribunal held that there had been a relevant transfer to DCHS, but did not determine the date of the transfer due to a lack of evidence. However, it struck out her claims. It found that there was no good reason for the delay. In terms of balancing the injustice and hardship of allowing the amendment against the hardship and injustice of refusing it the tribunal considered that DCHS would be faced with defending her claim and being responsible for the actions of the first respondent.
Ms Mist appealed that the tribunal had not assessed the balance of hardship properly among other things. DCHS cross-appealed against the tribunal’s decision to allow the amendment.
The EAT allowed Ms Mist’s appeal on the basis that the tribunal had not properly applied the injustice and hardship test. In particular, the prejudice to Ms Mist was greater because she would be denied the right to bring a claim against the transferee whereas the community trust would just be prevented from arguing a time limit point.
The EAT also rejected the community trust’s argument that Ms Mist’s claim should be rejected because there was a difference in the name on the EC Certificate (where the employer was named as the Royal Derby Hospital) and the ET1 (where the employer was named as Derby Hospitals NHS Foundation Trust). In doing so the EAT held that the tribunal was entitled to treat the difference as a minor one and there was no strict requirement to give the full legal title. The EAT also held that there was no need for Ms Mist to commence early conciliation against the second respondent as that could be dealt with by way of amendment.
The appeal was allowed on the basis that the tribunal had failed to determine the date of the transfer and whether Ms Mist was immediately employed before the transfer.
With regard to the conciliation point, the EAT relied on the decision in Science Warehouse Ltd v Mills (weekly LELR 454), in which it was held that claimants do not have to go through the process again when they want to add another claim that relates to an existing one. As there was no difference between joining a respondent and adding a new claim for these purposes, there was no need for Ms Mist to go through the conciliation process again.