Can an employment tribunal add a respondent to proceedings who was not named on the Early Conciliation certificate?

The case of Drake International Systems Ltd and others v Blue Arrow Limited has highlighted that in certain situations an employment tribunal is not prevented from adding a respondent to proceedings where that respondent was not named on the Early Conciliation certificate.

By way of background, Blue Arrow Limited (Blue Arrow) was a transferee that took over a contract for the management of workers. Blue Arrow then wished to bring a claim against the transferor yet its identity was unclear. Blue Arrow began the Acas early conciliation procedure and referenced Drake International Limited (Drake). Blue Arrow subsequently brought proceedings against Drake and confirmed in their ET1 that they had not been able to identify the transferor with certainty and reserved the right to add further respondents.

After proceedings were issued, Drake argued that the correct Respondents were in fact its four subsidiaries. In its ET3, Drake sought to have the proceedings dismissed and argued that the claims against the subsidiaries were out of time. Blue Arrow successfully applied to amend proceedings to substitute the subsidiaries for the parent company. Drake appealed the decision arguing that it was mandatory for an early conciliation process to have been undertaken between the Claimant and the subsidiaries before they could be added to the claim.

The appeal was heard and subsequently dismissed by Mr Justice Langstaff (sitting alone in the Employment Appeal Tribunal). Mr Justice Langstaff noted that Rule 34 of the Employment Tribunal Rules 2013 gives an employment tribunal the discretion to add, substitute or remove a party from proceedings even outside of the limitation period, and in this instance, the employment tribunal had made the case management decision to exercise its discretion and substitute four subsidiary companies for a parent company.

Mr Justice Langstaff identified that the link between the parent company and subsidiaries was close (as shown by the fact they had the same legal team representing them). Mr Justice Langstaff further noted that the employment tribunal had exercised its discretion in a matter satisfying the requirements of “relevance, reason, justice and fairness inherent in all judicial discretions”. Mr Justice Langstaff further opined that if the claim against the Respondents had been entirely unrelated to the proceedings against the parent company then the employment tribunal may well have declined to permit the amendment.

This case is noteworthy as it confirms that an employment tribunal is not prevented from adding a respondent to proceedings where that respondent was not named on the Early Conciliation certificate. However, it is clear that any decision to do so will be heavily dependent on the facts of the case.

Should you or your business require any further guidance on the Acas Early Conciliation process or the Employment Tribunal Rules then please contact us on 0161 672 1425.