United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KALU (The Appellant in person)


 


HIS HONOUR JUDGE J R REID QC

1. This is the Ex Parte application on the second of Mr Kalu's appeals that we have to deal with this morning. In this particular instance the issues that he wishes us to address are that he was refused leave to add VINCI Plc as a Respondent to his claim, and that he was refused leave to add two further heads of claim which he wished to add relating to activities in respect of his pension scheme and adverse references he alleges were given to financial institutions and potential employers.
2. Mr Kalu has quite rightly pointed out to us that there is no time limit on the time within which a Tribunal can grant leave to amend an application. He drew our attention to the well known authority British Newspaper Printing Corporation North Ltd v Kelly [1989] IRLR 222. We entirely accept that as the law as laid down there, and we are grateful to Mr Kalu for drawing that well known case to our attention. However, in our judgment it does not have any relevance to the matters that we have to deal with here today.
3. So far as the application to join VINCI Plc is concerned, it appears to us that this is a misconceived application. The position is that VINCI Plc did not come on to the scene, so far as parking in Hackney is concerned until after the date of Mr Kalu's dismissal. The last payslip that Mr Kalu received was from Total Facilities Management Ltd, generally referred to as TFM. Mr Kalu's complaint is that VINCI Plc subsequently took over TFM. In our view it is clear therefore that VINCI could not be liable directly on any claim that Mr Kalu might have against TFM because at no stage was VINCI the employer, even on the most favourable view of the matter. Whether or not there might be some arrangement between VINCI and TFM for the indemnification of TFM by VINCI is neither here nor there.
4. More fundamentally there is this problem. So far as the evidence goes what happened was that VINCI Plc acquired TFM Ltd, ie it bought out the shares in TFM Ltd. TFM Ltd remained in existence and, on the evidence before the Tribunal, continued in business. There was no transfer of undertakings. What happened was simply that VINCI became the new shareholder in TFM in place of the previous shareholder. There is no doctrine of law by which a parent company automatically becomes liable for the activities of its subsidiary company, least of all when it only acquired the subsidiary at a date after the events complained about. In our judgment it was entirely right for the Tribunal to refuse to join VINCI Plc as a party to these proceedings. There is no serious basis on which that decision could be challenged.
5. So far as the second part of this application is concerned, which was the application to add two entirely different claims, the pension claim and the claim relating to the references, the Tribunal took the view that those matters did not fall within the ambit of the issues then before the Tribunal and that they were for all practical purposes new claims in so far as it could be judged from the detail to hand so that they would be properly treated in other proceedings. The Tribunal raised the further question as to whether there was any statutory jurisdiction in the Employment Tribunal to deal with claims of those sorts in any event, but that was not the basis upon which it refused the application to amend.
6. In our judgment the Tribunal was entirely right in refusing to allow these matters to be amended. If they are matters which are justiciable they should be dealt with in other proceedings, either, if Mr Kalu can satisfy the Tribunal that there is jurisdiction, in a fresh application to the Employment Tribunal or, if on consideration, as appears may well be the case, Mr Kalu thinks that the matters do not fall within the statutory jurisdiction of an Employment Tribunal, then by action in the Courts. Either way, in our judgment, the Tribunal was entirely correct in holding that these were not matters which should be added by amendment to the then existing proceedings before the Employment Tribunal.
7. In those circumstances we take the view that there is no purpose to be served by this appeal going forward to a Full Hearing and it will be dismissed. We will now turn to the third, and in terms of paper at least, the most substantial of the matters which Mr Kalu wishes to put before us.