Russell John Curtis v Curtiss Wright T/A E/M Coating Services — 2022

At a preliminary hearing by CVP on 15 November 2021 and 13 December 2021, Employment Judge Britton considered the claimant's application to amend the respondent name. The claimant had presented an ET1 on 3 December 2019 bringing unfair dismissal and disability discrimination claims against “Curtiss-Wright T/A EM Coating Services”, while also naming Metal Improvement Company LLC as R2 and R3 without ACAS early conciliation reference numbers. The claims against R2 and R3 had been rejected under Rule 10(1)(c) because the ET1 did not contain an EC number for them, and no reconsideration application was made.

It was common ground that the claimant's actual employer was Metal Improvement Company LLC, which had used the trading name “Curtiss-Wright E/M Coating Services”. The tribunal recorded that the claimant had signed contracts of employment with MIC, and that payslips, P60, P45, a business card, pension material, website material and workplace signage all used the Curtiss-Wright name in the business's trading style. The judge accepted that the claimant had genuinely believed R1 was the correct respondent when he started ACAS early conciliation and when his solicitor later filed the ET1, and that the delay in making the substitution application was explained by that mistaken belief and the later disclosure of the employment contract.

The tribunal held that the rejected claims against R2 and R3 had never been validly instituted and that res judicata, estoppel, and abuse of process did not bar substitution. Applying Rule 34, the Selkent and Cocking principles, the overriding objective in Rule 2, and the authorities discussed including Mist, Drake, Nayif, Perry and E.ON, the judge concluded that allowing substitution would not be an impermissible circumvention of the early conciliation rules. The application was granted, and the correct respondent was substituted as Metal Improvement Company LLC T/A E M Coating Services. No merits determination was made of the unfair dismissal or disability discrimination claims.