United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MRS E HAY Solicitor Instructed by: Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the Respondents	MRS C MCMAHON IN PERSON


 


HIS HONOUR JUDGE WILKIE QC:

1. This is an appeal by Eemtrans (UK) Ltd against a decision of a Chairman dated 8 June 2000 who decided that he had no jurisdiction to join as a further respondent to Employment Tribunal proceedings, the company Massey Freight (UK) Ltd.
2. The history of these proceedings is that Mrs McMahon commenced them on 13 March 2000 when she claimed against two companies, Eemtrans and Ramage for constructive dismissal, asserting sexual harassment and unfair deduction of wages. Those claims related to a period of employment with Eemtrans Ramage Distribution Ltd was added as a Respondent, apparently on the basis of some perception that they may have had the business of Eemtrans transferred to them. The Respondents, Eemtrans Ltd filed a Notice of Appearance on the cover of a letter dated 28 March.
3. In that Notice of Appearance, the allegation was made that Mrs McMahon was employed full time within a certain function of Eemstrans Ltd and that a significant proportion of this activity had been acquired by Massey Freight (UK) Ltd, such that any liability that there might be to Mrs McMahon on the part of Eemtrans Ltd had been transferred to Massey Freight Ltd. In response to that Massey Freight (UK) Ltd on 5 April entered an appearance, denying that there was any question of there being a transfer and requesting that they be deleted as third Respondents. On 13 April the Office of Employment Tribunals' in Liverpool sent a letter to the solicitors acting for Eemtrans, enclosing amongst other things the Notice of Appearance on behalf of Massey Freight (UK) Ltd, in which they indicated the proposal to delete Massey Freight (UK) Ltd from the proceedings.
4. The letter concludes that this will not prevent Ramage Distribution Ltd from contending that there was a transfer. Prior to that, on 30 March, the Employment Tribunal had written to the Respondents', Eemtrans, solicitors to the effect that Massey Freight (UK) Ltd had been added as third Respondents' and that the proceedings had been served on them. On 19 April the Eemtrans solicitors replied to the Chairman's letter of 13 April, resisting any application on the part of Mrs McMahon to have Massey Freight (UK) Ltd deleted from the action and asserting that there was a transfer of an undertaking from Eemtrans (UK) Ltd to Massey Freight (UK) Ltd. That letter was referred to a Chairman of Tribunals' and on 4 May the Employment Tribunal wrote to Eemtrans solicitors to this effect:

"But since the Applicant, Mrs McMahon does not want to proceed against Massey Freight (UK) Ltd and does not seek any remedy against them, the Chairman had instructed that their name be deleted as Respondents', so that the case would now proceed only against the two Respondents', Eemtrans (UK) Ltd and Ramage Distribution Ltd."

5. On 12 May the solicitors for Eemtrans responded to that letter objecting to the course of action of deleting Massey Freight (UK) Ltd from the action, on the basis that both Respondents' seek relief against Massey Freight (UK) Ltd as the party to whom the business had been transferred in accordance with the TUPE Regulations. They stated that in terms of r.17 (1) they had made an application for Massey Freight (UK) Ltd to be joined as a party to the application, that they would require to recover documents and further particulars from Massey Freight (UK) Ltd, which could only be done in terms of r.4, in respect of a party to proceedings. They concluded that it was irrelevant whether the Applicant Mrs McMahon sought the relief against Massey Freight (UK) Ltd. It was sufficient that the other Respondents' sought such relief in terms of r.17.
6. On 18 May the Chairman directed a letter to be written to Eemtrans solicitors to the effect that if the only reason they have for adding Massey Freight (UK) Ltd, was to obtain discovery of documents, that could be met by applying for and being granted a witness order with requirement to produce documents. The question was posed what else Eemtrans might gain by joining them. On 6 June, Eemtrans solicitors wrote in response to that letter to the effect that the reason for adding Massey Freight (UK) Ltd is not simply in order to obtain discovery of documents, rather, and in addition, the two respondents' seek relief against Massey Freight (UK) Ltd. In addition they sought to have Massey Freight (UK) Ltd joined in order to obtain further and better particulars.
7. The immediate response to that letter of 6 June was the decision of the Employment Tribunal Chairman to the effect that the Tribunal has no jurisdiction to give Eemtrans or Ramage Distribution Ltd relief against Massey Freight (UK) Ltd, thus r.17 did not enable the Chairman to join them.
8. Eemtrans and Ramage have been represented today by Mrs Hay who in clear and effective oral and written submissions has drawn our attention to regulation 17 of the Employment Tribunal's constitution etc, Regulations 1993 within which the following is the relevant regulation:

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."

She points out that this regulation covers similar ground to r.13 (1) in the Industrial Tribunals' Labour Relations Regulations 1974 which provided that:

"A Tribunal may at any time upon the Application of any person, whether an Applicant or Respondent or not, or of its own motion, direct to any person appearing to the Tribunal to be directly interested in the subject of the originating Application be added as a Respondent and give such consequential directions as it considers necessary."

She drew our attention to certain authorities decided under those previous regulations and in particular to the case of Sandhu v The Department of Education and Science [1978] IRLR 208 in which the question of who had or may have a direct interest was the subject of a ruling and at the end of paragraph 4 of that decision the Employment Tribunal said that:

"The Department of Education and Science by did not have a direct interest so as to be capable of being joined in the circumstances where no possible relief in accordance with the statute could be obtained against them."

Relying upon that line of authority and terms of the previous existing rules, Mrs Hay seeks to argue that the words in regulation 17:

"Any person against whom any relief is sought."

This ought to be read not literally, but as if there were added the words:

"Or could be sought."

She says that that would make the meaning of regulation 17 clear, as being consistent with the meaning of previous r.13 as construed by the Employment Appeal Tribunal.

9. In other words, in order to be capable of being joined as a party, a person need not be somebody against whom the party seeking to join them or any party to the action actually was seeking relief, but it was sufficient that there is a possibility that relief could have been sought against them by any party to the litigation. In other words, she says that the Tribunal did have jurisdiction to join Massey Freight (UK) Ltd because Mrs McMahon could have sought relief against Massey Freight (UK) Ltd as an alternative target to Eemtrans even though she herself did not wish to do so.
10. In support of this contention and in support of an alternative contention, she seeks to rely on regulation 4 of the 1993 Regulations under which the Tribunal has power to require a party to provide further and better particulars or grant discovery, or inspection of documents. She says that illuminates what is the proper ambit of regulation 17 because she says that a party such as Eemtrans, unless they can join Massey Freight (UK) Ltd to the proceedings, may not have made in their favour under regulation 4 an order for discovery or inspection of documents, or further and better particulars as, unless Massey Freight (UK) Ltd is joined, Massey Freight (UK) Ltd is not a party to the proceedings.
11. She says that whilst it is true, as the Chairman pointed out, that they could apply for a witness order, which could require documents to be produced, that would be only a very poor second best, both because the material would only become available at the hearing, as opposed to in advance of the hearing, and also they potentially have to apply for witness orders, against a number of persons who might be expected to have documents in their possession, or from whom such documents might have emanated. If Massey Freight (UK) Ltd were a party, then they could require all documents that they held to be produced. She says that the inhibition under regulation 4 serves to add weight to her contention that the words of regulation 17 should be read as consistent with the previous rule 13.
12. In any event her alternative submission is that Eemtrans is seeking relief against Massey Freight (UK) Ltd in this sense. They put forward a positive case seeking to resist Mrs McMahon's application, to the effect that Mrs McMahon has no claim against them because of a transfer but has a claim against Massey Freight (UK) Ltd. She is thus saying that a denial of liability on a certain and specific ground which involves an assertion of liability in someone else, constitutes a seeking of relief against that third party.
13. In our judgment the words of regulation 17 are perfectly clear and they are different from the words, embodied in the previous rule 13. Whatever may or may not have been the proper construction of the words in r.13 what we are concerned with is the proper construction of the words in regulation 17.
14. In our judgment those words in Regulation 17 are perfectly clear and unambiguous. The only person against who may be joined to such proceedings is a person against whom any relief is sought, not a person against whom relief might be sought by a party who in fact does not wish to seek relief and therefore does not wish them to be joined to the proceedings. Therefore, the mere fact that, standing the assertions of Eemtrans, Mrs McMahon might, out of an abundance of caution, or in different circumstances, wish to extend her claim in the alternative against Massey Freight (UK) Ltd does not avail the Respondent, Eemtrans if Mrs McMahon for her own good reason does not wish to join Massey Freight (UK) Ltd and therefore does not seek relief against them.
15. Thus in our judgment insofar as the claim is that the Tribunal erred in law in failing to identify that it had a power on the basis of a claim which Mrs McMahon might wish to have made but chose not to make against Massey Freight (UK) Ltd, there is nothing in that point and the Chairman was right as a matter of law. As to the alternative argument namely that Eemtrans itself is seeking relief against Massey Freight (UK) Ltd, in our judgment that overstates the position as a matter of law. The position is that Mrs McMahon has chosen to nail her colours to the mast of seeking relief only against Eemtrans and Ramage Distribution Ltd. Those Respondents' say they have a defence to those claims on the footing that liability no longer lies with them but lies elsewhere with Massey Freight (UK) Ltd.
16. If they were right in that then Mrs McMahon has aimed her claim at the wrong parties and she would lose the claim. The relief sought by Eemtrans and Ramage Distribution Ltd is relief from liability in respect of Mrs McMahon's claim and that is relief which is complete in itself by their assertion of their defence. They do not seek any positive order in respect of Massey Freight (UK) Ltd. The fact that they identify Massey Freight (UK) Ltd as the recipient of the business is a simply a by product of their essential case, which is that the liability does not lie with them. In our judgement, therefore, it would be an abuse of language to say that either Eemtrans or Ramage Distribution Ltd seeks any relief against Massey Freight (UK) Ltd, whereas the only relief they seek is relief from their liability to Mrs McMahon.
17. Therefore, not withstanding the very able argument put forward by Mrs Hay, we are constrained to find that the Chairman of Tribunals did not err in law in coming to the conclusion that he did, namely that he had no jurisdiction to join Massey Freight (UK) Ltd in a situation where Mrs McMahon made no claim against them and did not wish them to be joined. Mrs McMahon in her very clear and concise supplemental skeleton to the fuller argument which she put forward in her main skeleton argument, summed it up as follows:

"The Applicant does not seek any relief against Massey Freight (UK) Ltd in any form. Her position is that there is no possible relief obtainable against Massey Freight (UK) Ltd.

"We agree with that statement, as a summary of the situation. Therefore it follows that we dismiss the appeal of Eemtrans and Ramage Distribution Ltd and the proceedings will continue only against the two Respondents' who Mrs McMahon has thus far joined."

18. We therefore dismiss this appeal.