In De Mota v ADR Network and The Cooperative Group Ltd, the EAT determined that it was not necessary for a claimant, when bringing his claims against two employers, to be issued with a separate EC certificate naming each employer.
The case concerns a Portuguese lorry driver for whom English is not a first language. He wished to bring claims against two employers and his friend completed the ACAS on-line form on his behalf, naming both employers and giving their addresses within the employer address section. Despite clear instructions on the ACAS webpages which state that separate forms should be filled in for each respondent or the form "will be rejected", ACAS accepted the forms and subsequently issued one EC certificate naming both employers.
The employment tribunal accepted the ET1 which named both employers. The respondents questioned whether the tribunal had jurisdiction to hear the claim, arguing that the EC certificate was invalid. The tribunal struck out the claim against both respondents on the basis that the EC certificate did not clearly identify one employer or the other and the rules state that separate forms should be used. The judge commented that he would have allowed the claim to proceed against one employer where that employer had been clearly identified (as in the 2016 EAT case of Mist v Derby Community Health Services NHS Trust  ICR 543) but this was not the case here.
However the EAT disagreed. It remitted the case to the same tribunal to proceed with the claims. The EAT rejected the technical approach taken by the employment tribunal. The judgment makes clear that under the EC rules, ACAS is not bound to reject an EC form which names two employers. Interestingly, the judgment focuses on the purpose behind the EC rules which is not, in the EAT's view to bar claims on a technicality, but to allow a structured opportunity for conciliation with the correct parties. In the words of His Honour Judge Richardson; "It is one thing to impose a requirement for good order; another thing altogether to elevate it to such a height that it bars access to the courts."