United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	THE RESPONDENT IS DEBARRED FROM THE PROCEEDINGS


 


HIS HONOUR JUDGE McMULLEN

1. In this case I am sitting alone, pursuant to Employment Rights Act 1996 section 28(4), on an appeal from the decision from a Chairman of an Employment Tribunal alone, Mr B E Walton, sitting at Truro, and promulgated on 22 May 2002. I will refer to the parties as applicant and respondent. The representations received include a notice that the applicant is debarred from taking part in the proceedings and the respondent is content to rely upon written submissions.
2. The appeal arises from a hearing where neither party attended before the Chairman. He decided that the applicant was entitled to the sum of £24.83 in respect of unlawful deductions, made, contrary to section 13 of the Employment Rights Act 1996, and, £210 in respect of holiday pay, for which he had not been paid.
3. The respondent appealed on the grounds that it was not properly constituted as a respondent to the proceedings. In my judgment, that is correct. The Chairman was asked to review his decision and came to the conclusion that the respondent was correctly identified. Pursuant to a direction given by the President, a hearing at which both parties were entitled to attend was ordered on 13 August 2002.
4. In the originating application, the applicant, a factory operative, named as his employer, Shaun Griffin, Euromech Windows, Unit 15, Moorswater Industrial Estate, Liskeard, PL14 4LN. Shaun Griffin gave his full name and address as follows in his Notice of Appearance:- Shaun Griffin, c/o Euromech Ltd and the above address. In the Notice of Appearance it is said:-

"1/ The respondent does not trade as Euromech Windows, either at present, or previously.

2/ The respondent has at no time employed the applicant in any capacity."

5. The decision of the Chairman was served upon Euromech Ltd and, in its application for a review, Euromech put forward a number of reasons consistent with its defence in its respondent's answer. The Chairman decided that the Notice of Appearance was entered by Mr Griffin, c/o Euromech. The application for a review was written on Euromech Ltd paper. Written submissions were sent with a cover sheet from Euromech Ltd and proceedings were served on Euromech's registered office. He then said this:-

"I concluded, and still do, that the proceedings were received by Euromech Ltd, were defended in written submissions by Mr Griffin on behalf of Euromech Ltd and the title should be amended to Euromech Ltd."

6. Prior to the Chairman deciding the substantive issue in the case, a letter had been directed to the applicant as follows:-

"Please find enclosed a copy of the Notice of Appearance entered by the named respondent.

A Chairman to the Tribunals has directed me to ask whether, in view of the contents, you wish to name any other party as a respondent and whether you have any other address for Euromech Windows."

The applicant did not indicate any response to that letter.

7. The applicant was, in due course, debarred from proceeding in the EAT because he had not complied with EAT orders. The nature of the appeal is that the correct respondent is Shaun Griffin, and Euromech Ltd is not the proper respondent. I agree. Euromech Ltd appears in the decision. Although neither party attended, it must have been plain that the applicant was suing Shaun Griffin personally. I, and I assume, the Chairman, do not know the nature of the shareholding, if any, by Shaun Griffin in Euromech Ltd. It may be that it is entirely the alter ego of Shaun Griffin; on the other hand, there may be real and practical distinctions. It may appear to be an artificial distinction if Shaun Griffin was the leading light and principal shareholder. But it is a legal distinction of long standing that a limited liability company is different from any of its directors, its shareholders or its employees. It seems to me that the respondent is correct when it says that it was not properly constituted as a respondent and an award of compensation against it should not have been made liable. The applicant was given a written opportunity to make clear who his case was against and did not do so. In the circumstances it appears that the Chairman has erred in law in failing to recognise the distinction between the respondent and Shaun Griffin and it is unfair to the respondent to order it to pay compensation when it was never properly sued. I allow the appeal.