Prior to lodging a tribunal claim, complainants have to obtain an early conciliation certificate in relation to their employer. In Patel v Specsavers Optical Group Ltd, the Employment Appeal Tribunal (EAT) held that, as the claimant in this case had failed to do so in relation to the correct employer, he could not continue with his claims.
Mr Patel operated the Specsavers store in Skelmersdale as a joint venture with Specsavers Optical Group Limited (SOG). Under this joint-venture model, the store was run by a holding company Skelmersdale Specsavers Limited (SSL) as well as a trading company Skelmersdale Visionplus Limited (SVL), which was wholly owned by SSL. Mr Patel entered into a written contract of employment with SVL as well as a shareholder agreement with the holding company, SSL.
Following his summary dismissal, Mr Patel obtained an early conciliation certificate in respect of SOG. He then submitted a tribunal claim form naming SOG as well as SSL as respondents to his claims for unfair dismissal and victimisation. The tribunal dismissed Mr Patel’s claim against SSL on the papers because it had not been named as a potential respondent in the early conciliation procedure.
Following reconsideration of that decision he accepted that SSL had never been his employer. A preliminary hearing was therefore listed to decide firstly if he had ever been an employee of SOG, and secondly whether SVL should now be added to the proceedings as his employer.
With regard to the first question, Mr Patel argued that he was employed by both SVL and SOG jointly. The tribunal held that this was not a case of dual employment because Mr Patel had a contract of employment with SVL. That contract was not a sham arrangement nor was it superseded by the shareholders’ agreement since that agreement focused on the business activity of the store.
Although SOG provided services for SVL such as processing Mr Patel’s payslip and conducting the disciplinary hearing, this was as agent for SVL and did not mean that SOG was his employer. Ultimately SVL held control over Mr Patel.
In relation to the second point, the tribunal found that he had failed to inform ACAS that he had always intended to bring a claim against two respondents. The fact that he had made an error in naming SSL did not affect the fact that the early conciliation certificate had been issued against the wrong employer (namely SOG). This was not a minor error in relation to a name or address but a failure to name the company as a prospective respondent at all.
Mr Patel appealed on the basis that the tribunal was wrong to rule against his argument that he was employed by both SOG and SVL. He also argued that the tribunal had made an error in finding that he had not informed ACAS of the proposed second respondent and that the tribunal’s written reasons differed from its oral reasons that he had been misled by advice from the ACAS officer about having two employers.
Rejecting the appeal, the EAT held that Mr Patel had a valid employment contract with SVL, the wholly owned subsidiary of SSL. He was not employed by SOG with whom he had entered into a shareholders’ agreement which did not deal with all the matters expected to be found in a contract of employment. On the facts of this case there was therefore no reason to depart from the principle that in general an employee cannot have two employers simultaneously.
The EAT also held the tribunal had not erred in failing to add or substitute SVL as a respondent. There was no evidence from ACAS nor was there any evidence that the tribunal’s written reasons differed from its oral reasons.
As Mr Patel was an employee of SVL but had not obtained an early conciliation certificate in relation to the company, he could not therefore continue with his claim.
This case is a reminder of the importance of identifying the correct employer when commencing early conciliation especially in complex employment relationships.