United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N KHAN (of Counsel) 1A Centre Community Association Ltd 1A Roseberry Avenue London ECIR 4RT


 


JUDGE CLARK

1. The 4 Respondents to this appeal presented Originating Application to the Stratford Employment Tribunal complaining of unauthorised deductions from their wages and constructive unfair dismissal on the part of their employer, with the support of their Trade Union, Unison. We shall hereafter refer to them as the Applicants.
2. We have before us a sample Originating Application presented by Ms Adelia Gwiazda, present on 6 August 1999. She named as her employer, against whom her complaint was brought, the London Borough of Camden (the Council), and gave as the employers address 1A Community Centre, 1A Roseberry Avenue, London EC1. She describes herself as a Family Link Worker and gave as her dates of employment 2 November 1992 until 25 June 1999. We believe that the 3 other applicants presented similar complaints, subject to individual variations as to job title, length of service etc.
3. The Council did not enter a Notice of Appearance. Instead a Notice of Appearance was entered in the name of 1A Community Centre, dated 26 October 1999, and appears to be signed by R Raghubar.

The Employment Tribunal Decision

4. The claims were heard together by an Employment Tribunal sitting at Stratford on 23 March 2000 (Chairman: Ms I Manley). By a decision with extended reasons promulgated on 25 April, the claims of each Applicant were upheld, the Employment Tribunal finding that each had been under paid wages, constructively dismissed and that those dismissals were unfair. The outstanding wages and compensation for unfair dismissal in each case was calculated by the Employment Tribunal.
5. Material to this appeal is the proper identity of the Respondent employer. The Employment Tribunal heard evidence from the 4 Applicants, Mr Raghubar and 2 further witnesses who attended under witness orders, they were Mr Barford, a Council Officer and Mr Julian Fulbrook, a Camden Councillor and former member of the management Committee of the 1A Community Centre. Mr Raghubar was Chairman of that Committee.
6. As to the proper identity of the Respondent the Employment Tribunal dealt with that matter at paragraph 4 of their reasons thus;

"the community centre is a company limited by guarantee. Notepaper which we refer to shows it being Registered Company Number 2747232 and "1A Centre Community Association Limited". Before the oral evidence heard in the Tribunal, it had seemed that this was an unincorporated association and all members of the management committee had been named as Respondents. However, having heard from Mr Raghubar and Councillor Fulbrook on this issue, the Tribunal is satisfied that the company is indeed a company limited by guarantee and that they are the proper Respondents for this matter."

7. Consequently, the Employment Tribunal amended the proceedings to name company as Respondent.

The Appeal

8. In this appeal Mr Khan, who appears on behalf of the Appellant, has realistically accepted that the appeal in truth discloses no arguable point of law. The argument advanced in the Notice of Appeal was to the effect that the Employment Tribunal erred in law in amending the name of the Respondent from Mr Raghubar and the Management Committee of the 1a Centre to the Limited Company, 1A Centre Community Association Ltd (the Company). It was argued in the Notice of Appeal and in a skeleton argument submitted in support of the appeal, that the company was never served with notice of these proceedings and had no opportunity properly to defend itself. Such a course, it was contended, is contrary to the rules of Natural Justice. It is submitted that the proper course would have been to adjourn the proceedings following such amendment and to give directions for the service of amended forms IT1 on the secretary of the company, so as to give the company a proper opportunity to be heard. We think that that argument has been properly abandoned by Mr Khan in the following circumstances.

Adding or substituting Respondent's

9. The relevant power is contained in Rule 17 of the Employment Tribunal Rules of Procedure 1993 which provides:-

"(1) A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary.

(2) A tribunal may likewise, on such application or of its own motion, order that any respondent named in the originating application or subsequently added, who appears to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application be dismissed from the proceedings."

10. The Employment Tribunal's power to add or substitute Respondents has always been available as part of their powers to regulate their own proceedings. Thus in Cocking –v- Sandhurst (1974) ICR 650 National Industrial Relation Court overturned an Industrial Tribunal decision dismissing the Applicants claim against a parent company which actually employed him, having allowed an amendment to substitute the parent company for a subsidiary company originally named by the Applicant as Respondent. The Industrial Tribunal held that the amendment carried the date when leave to amend was granted, not the original date on which the Originating Application was presented. In these circumstances they held that the claim against the correct Respondent, parent company, was time barred.
11. The National Industrial Relation Court held that the original claim was intended to be directed to the Applicant's employer. That complaint was in time. The Employment Tribunal had jurisdiction to allow the necessary amendment to substitute the correct Respondent and the claim remained in time.
12. Further examples can be found in the cases. We should refer to 2 of them. First, Watts –v- Seven Kings Motor Co Ltd (1983) ICR 135. There, the Industrial Tribunal awarded the Applicant compensation for unfair dismissal against the named, corporate Respondent. Thereafter the identity of the true Respondent (a similarly named firm) was discovered. The Employment Appeal Tribunal allowed an amendment to name the firm as Respondent; the Employment Tribunals order stood against the new Respondent, but an opportunity was given to that Respondent to apply to the Industrial Tribunal for a review under Rule 11.
13. In Linbourne –v- Constable (1993) ICR 698 the true identity of the Respondent was known throughout the Industrial Tribunal hearing. As no application was made by the Applicant during the hearing to amend to substitute the correct Respondent the Industrial Tribunal concluded on the merits that the dismissal was unfair but dismissed the claim against the original Respondent as there was no case against him. The Industrial Tribunal then refused an application to amend to substitute the true employer as Respondent. On appeal the Employment Appeal Tribunal not only allowed the correct employer to be substituted for the original Respondent, but adopted the Employment Tribunals findings on unfairness against the new Respondent, ordering that Respondent to pay compensation to the Applicant. However the new Respondent was given leave to apply for a review of the Employment Appeal Tribunals decision

Conclusion

14. We shall adopt the well-settled approach and dismiss this appeal. The Employment Tribunal was entitled to substitute the real employer for the unincorporated association which had appeared to have entered an appearance to these Applicants claims.

Review

15. It is clear from the authority's as Mr Khan submits that in a proper case an Employment Tribunal may entertain an application for review when substitution of a new party as Respondent at the hearing has caused real prejudice to that party, if necessary granting an extension of time for review under Rule 15, see Gillick –v- BP Chemical Ltd (1993) IRLR 437. However, it seems to us it will be necessary in this case for the company to show that it has suffered real prejudice in defending itself by the substitution of Respondents. It may be that their interests were adequately protected by the attendance of Mr Raghubar at the Employment Tribunal to conduct the defence to these claims, as we made clear in course of argument. It will be entirely a matter for the original Employment Tribunal to decide, if an application is made, whether good grounds are made out, first for an extension of time for applying for review and secondly, for a review hearing taking place.