At the Tribunal | |
On 7 March 2002 | |
Before
MR COMMISSIONER HOWELL QC
MISS C HOLROYD
MR N D WILLIS
APPELLANT | |
(2) J A PARKINSON FORMERLY T/A PARKINSON & CO |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR DAVID LINTOTT (of Counsel) Instructed by: Heald Nickinson Solicitors 24 Park Street Camberley Surrey GU15 3PL |
For the Respondent | MR DAMIEN BROWN (of Counsel) Instructed by: Messrs Leuty & Lynch Solicitors 3 & 4 Market Place Wokingham Berkshire RG40 1AL |
MR COMMISSIONER HOWELL QC
"Please confirm that you will fulfil the contractual and statutory obligations as to payment in lieu of notice and redundancy payment.
Unless we hear from you within the next seven days, we shall be advising our Client to file a claim for unfair dismissal in the Employment Tribunal."
The allegations in that letter were firmly refuted by a detailed reply dated 4 February 2000 from Heald Nickinson saying that there had been no transfer of the business of Parkinson & Co to which the Regulations applied, and denying any liability on their part to Mr Ford, describing his claim, in the events which had occurred, as:
"frankly a breathtaking affront".
"If your client persists with his intended application to the Industrial Tribunal, the same will be most strenuously defended, and unusual though it is for Tribunal proceedings, an application will be made for costs by reason of your client's conduct."
As the Tribunal recorded in paragraph 16 of their Extended Reasons, on the same day or within a day or so all the other Applicants except one wrote to Heald Nickinson along similar lines, alleging that there had been a relevant transfer, and within a day or so each received a reply refuting that assertion. No further relevant correspondence passed between the Applicants and Heald Nickinson, but on 8 February 2000, Mr Ford wrote to Mr Parkinson saying:
"You may or may not be aware that I wrote to Heald Nickinson in respect of Redundancy matters, outstanding wages and/or Notice pay.
I took separate and independent legal advice from Messrs Bells Potter of Farnham, who indicated that Heald Nickinson owed me a duty under the Transfer of Undertakings Act in respect of employment……
However, in relation to Notice pay, I am advised by my Legal advisers that because of the situation and length of service I am entitled to three months pay in lieu of Notice, and my initial claim should be made to you.
I am also advised that if you do unfortunately become Insolvent it may that I can put my claim to the Department of Trade and Industry as well, but initially I invite your comments on the matters raised in this letter at your earliest convenience.
I also reserve my right to make my claim to Heald Nickinson, and this is a matter which I am considering doing, as I still take the view (as does my Legal adviser) that any Company who take over a Business must honour and is responsible for any debt the old Employer owed to myself. As I was quite clearly dismissed I am able to mount a claim for compensation for Unfair Dismissal from Heald Nickinson, and they may well have informed you that myself and other members of Staff have already approached them in this respect."
"Redundancy claim and unfair dismissal".
It gave the date of termination of his employment as 17 January 2000. The Originating Applications by the other Applicants followed on 14 April 2000, in each case naming Parkinson & Co or John Anthony Parkinson as the sole Respondent, giving the date of termination of the Applicant's employment as either 14 or 17 January 2000 (except for one Applicant, Mrs Clark, who had worked as a secretary for the intervening solicitors down to 27 January 2000, and gave that as her date of termination) and making claims for unfair dismissal, plus redundancy claims in some cases but not all. The factual basis set out for all of these claims was that the Applicants had been effectively dismissed by the conduct of Mr Parkinson.
"I have sought legal advice and wish to inform you that at the time I completed my application there was some confusion as to who was my appropriate Employer. At paragraph 5 I have indicated this to be Parkinson & Co. At paragraph 9 I have mentioned that Parkinson & Co was acquired by Heald Nickinson, Solicitors. As I understand that Heald Nickinson have been trading under the name of Parkinson & Co, in respect of the files they acquired from that firm my Solicitors have advised me to apply to you to add Heald Nickinson, Solicitors of 77 High Street, Camberley, Surrey as a Respondent. In this respect they have referred me to the case of Kerry Food Limited v Creber & Others [2000] IRLR 10"
As recorded by the Tribunal in paragraph 6 of their Extended Reasons, that was followed by a similar application from Mrs Summers on 9 June to the Reading Tribunal office on behalf of herself and the other Applicants (at that stage including Ms Beveridge and Mr Gauntlett themselves, though they subsequently indicated that they did not wish Heald Nickinson to be joined). Both applications were dealt with by different Chairmen on an interlocutory basis, simply granting leave for Heald Nickinson to be joined but without recording any reasons or any indication of the matters taken into account.
"21 The majority view is that of the lay members. Their view is that the approaches to the second respondent by letter at the end of January were firmly rebuffed and it would appear that the applicants must then have concluded that the appropriate course would be to take proceedings against the first respondent. He did not enter a Notice of Appearance and it may be that the applicants were then in something of a quandary to know how to proceed. It was reasonable to seek to join the second respondent in the way that they did. The second respondent had been on notice that it might be brought into the proceedings although this was done at a stage when the limitation period (save for redundancy claims) had expired. The delay was not great. As far as the redundancy claims are concerned, the time limit for presenting an application is 6 months and that period had not expired when the second respondent was joined. On the issue of hardship, the majority view acknowledges that the second respondent will have to incur the trouble and expense of defending the claim and it will be at risk of an adverse finding. Those risks exist for any respondent. A degree of hardship will ensue if that risk is revived in the way that it has been by the joinder of the second respondent. It could not altogether have disappeared since the respondent would have been unable to resist an application to join them for the purposes only of a claim for a redundancy payment. On the other hand, the applicants will be prejudiced in that if the second respondent is removed from these proceedings; a potential avenue of redress will be blocked. It may be that their claim will succeed against the first respondent but it seems that he is probably a man of straw. Balancing the various competing interests of hardship and in the light of the views expressed above, the majority view is that their discretion should be exercised to the effect that the second respondent should have been made and shall remain a respondent to these proceedings.
22. The minority view is that of the Chairman. The Chairman's view is that the applicants were all well aware of the general situation in January. Mr Pope had the benefit of legal advice and, on his behalf, solicitors wrote to the second respondent raising the issue of a relevant transfer. The other applicants, except Mrs Clark, wrote similar letter on their own behalf. All were rebuffed. Even Mrs Clark must be taken to have had broad knowledge of the overall situation even though there is no evidence that she knew of the letters that her colleagues had written. It would have been open to the applicants to have joined the second respondent when filing their Originating Applications in March or April. That is a step that could easily have been taken and, in the Chairman's view, one which should have been taken. There has been no explanation, satisfactory or otherwise, advanced as to why that was not done. In the Chairman's view, the application should not have been granted to join the second respondent, save to the extent of a claim for redundancy payment where the primary limitation period had not expired. The second respondent was given no opportunity to be heard on the issue before the order was made. These factors lead the chairman to say that on reviewing the decision it should be revoked and the second respondent dismissed from the proceedings."
"In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or by substituting respondents, they should proceed as follows ……"
and then after satisfying themselves that the Originating Application in its unamended form was properly presented, and within the time limit appropriate to the type of claim being put forward in the amended application,
"(4) If it was not, the tribunal have no power to allow the proposed amendment. (5) If it was, the tribunal have a discretion whether or not to allow the amendment. (6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against. (7) In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused."
The context in which those remarks were made, which explains the formulation of paragraph (6) and the reference to a mistake not being "misleading", was that the employee's complaint of unfair dismissal had originally named as his employer the wrong company out of two within the same group with similar names: "Sandhurst (Stationers) Ltd" instead of "Sandhurst Marketing Ltd". As recorded at page 654F, the Tribunal had found that the erroneous statement in his first application that his employer was the subsidiary company misled neither the subsidiary company nor the parent company. However they also found that although this mistake was a genuine one, it had been due to carelessness on the employee's part, and the question, answered in the affirmative in the judgment, was whether he should be allowed to amend in those circumstances. Here, however, in Mr Lintott's submission, there was no question of a genuine mistake of that kind having been made, such as to fall within the same discretionary principle. It was plain that a conscious decision had been taken not to proceed against Heald Nickinson at the time that precise question had been considered with the Applicant's lawyers in January and February 2000; in view of that evidence, there was no factual basis for the majority to say that:
"the Applicants were then in something of a quandary to know how to proceed"
and as the Chairman pointed out there was no explanation of any kind for why the Applicants had chosen not to proceed against Heald Nickinson in the first place, so as to bring the case within Lord Donaldson's "mistake" formulation.
"it seems to be treated as the leading case on this subject":
see British Newspaper Printing Corporation -v- Kelly [1989] IRLR 222, paragraph 9. See also the judgments of the Appeal Tribunal in Gillick -v- BP Chemicals [1993] IRLR 437, paragraph 7; Drinkwater Sabey Ltd -v- Burnett & Another [1995] IRLR 238, paragraphs 31, 34; and the express reference in Mummery J's judgment in Selkent in paragraph 18 to Cocking -v- Sandhurst, without any suggestion of a difference in principle, for the purpose of determining whether a discretion exists, between amendments to add a different basis of claim against an existing party, and amendments to add a different basis of claim against a fresh party.
"We do not ……think that the Cocking approach is necessarily limited to cases in which the original and the new respondents are related as principal and subsidiary, or in some similar way. The presence or absence of a connection between the respondents may well be relevant in considering whether or not a genuine mistake has been made, and whether the industrial tribunal should exercise its discretion to allow the mistake to be corrected, but such considerations are relevant, if at all, as matters to be taken into account in exercising a discretion, rather than as limitations on the circumstances in which the discretion can be exercised."
That followed the citation in the immediately preceding paragraph of the material passage from Lord Donaldson's judgment referring to a "mistake". In our judgment it confirms that, whatever the precise ambit of the "mistakes" which it is proper to allow to be corrected by an exercise of the Tribunal's discretion, a case such as the present one (where the only reasonable inference is that after the question of joining Heald Nickinson as a party had been expressly ventilated and the complaints rebuffed in correspondence in February 2000, the idea had been dropped and a decision taken to proceed against Mr Parkinson alone when the Originating Applications were actually issued later) lies far outside it. We therefore accept Mr Lintott's submission that the majority misdirected themselves as to the way a Tribunal's discretion should be exercised in such circumstances, there was no reasonable basis in the facts or evidence before them for their apparent assumption that the Applicants had been placed in any quandary or confusion as to whether to name Heald Nickinson as Respondent to an Originating Application if they had wished to pursue the question of legal liability on Heald Nickinson's part for unfair dismissal despite the clear rebuff and the threat about costs, and consequently the approach of the majority was invalid in law and the Decision must be set aside.