When a Claimant has issued against a particular Respondent, and wishes to change his/her mind about the Respondent after the early conciliation process has finished, do separate early conciliation forms need to be filled in?

Background

In this case, the Claimant was unusually a business, Blue Arrow Limited. Blue Arrow had taken over a service contract from Drake International Limited, and had started tribunal proceedings against them relating to the TUPE Regulations.

Because it was not clear who the transferor company actually was, Blue Arrow started proceedings against Drake International Limited. However, in its response to the tribunal proceedings, Drake indicated that there were four subsidiaries which would be the correct Respondents, as opposed to Drake International Limited. They sought to have the claim struck out because Blue Arrow had not identified the correct these respondents in the conciliation process.

On appeal, the EAT decided that Blue Arrow did not have to start early conciliation again (it would have been out of time for this in any case) but that they could amend their claim to include all of the subsidiaries at the later point.

In its reasoning, the EAT pointed out that the purpose of the early conciliation provisions was to give the parties a chance to resolve their differences, and was not, therefore, ‘technical’ in nature. Indeed, they said, the way the early conciliation regulations had been drafted left the need to provide the strict identity of the Respondent fairly open.

Furthermore, once the claim had been accepted by the tribunal, the early conciliation provisions ceased to apply, and normal case management took over. Normal case management allowed claim forms to be amended to include different respondents.

The EAT was also mindful of its obligation to save expense, and avoid unnecessary formality in proceedings.

Implications

As this case went all the way to appeal, it shows that care needs to be taken when starting early the conciliation process. Although some latitude may be given where the correct respondent is not identified, as a claimant it is undoubtedly a good idea to identify as many respondents at the outset as possible so as to avoid the time and expense involved in responding to any technical points made against you.

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Updates: For employers: Tribunals | TUPE | For employees: Tribunals |

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