United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS INGRID SIMLER (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


THE HONOURABLE MR JUSTICE RIMER

1. This is the preliminary hearing of an appeal by Donnington Associates Ltd ("Donnington") against a decision of an Employment Tribunal sitting at Southampton on 12 July 2002, chaired by Mr I A Edwards. The Tribunal's extended reasons were promulgated on 30 August 2002.
2. The hearing was on a claim by Mr D G Burge that he had been unfairly dismissed by Donnington. The Tribunal held he had been and made awards in his favour totalling £13,178.80. Mr Burge appeared in person before the Employment Tribunal. Donnington was not represented.
3. The ground of appeal identified in Donnington's notice of appeal is that:

6 "The Employment Tribunal erred in law in that the Employment Tribunal has nominated as respondent a company [namely Donnington] which has never employed [Mr Burge] and which has had no dealings with [him]."

Donnington's point is, therefore, that if Mr Burge had a complaint against anyone for his dismissal, it was not against Donnington. As a proposition of fact, that is clear enough. But the suggestion that the naming of Donnington as a respondent was an error of law by the Employment Tribunal is more difficult. If it is not an error of law, then Donnington's appeal faces problems. That is because this Appeal Tribunal only has jurisdiction to deal with questions of law arising from decisions of Employment Tribunals.

4. We need to refer to certain brief facts. Mr Burge presented his originating application on 11 January 2002. He described his employment as having been from 1 May 1995 to 30 November 2002. Box 5 of the originating application required him to "give the name and address of the employer, other organisation or person against whom this complaint is being brought." He filled that in as follows:

"Name Mr Peter Boon M.D.

Address Donnington Associates Ltd

Church Cottage House

Church Square

Basingstoke

Hampshire"

5. The natural construction of that piece of drafting was that Mr Burge was naming Mr Boon as the respondent. With respect to Mr Burge, that may not have been very clever. The material before us appears to show that he had a formal written contract of employment with a company called Donnington and he might have been expected to know that his employer was a company, not Mr Boon personally.
6. A notice of appearance was entered on 5 February 2002. It was entered by Linex Associates Ltd ("Linex), which gave as its address the same Church Cottage House address as Mr Burge had given for Donnington. That notice raised points on the merits of Mr Burge's claim and made clear that Linex was accepting that Mr Burge had been its employee. It explained that the notice was being given by Linex rather than Donnington because Donnington had changed its name to Linex.
7. The hearing of Mr Burge's complaint took place on 12 July 2002. In their extended reasons the Tribunal explained that Mr Boon had asked for an adjournment of the original hearing (which had been fixed for 20 June) because of a pre-booked holiday. It was accordingly adjourned to 12 July and Mr Boon had acknowledged receipt of the letter giving the revised date. However, he did not attend on 12 July, nor did he submit any written representations. In those circumstances the Tribunal proceeded with the hearing in his absence, although they treated Linex's notice of appearance as amounting to representations from the respondent and recorded that they had taken account of them.
8. In paragraph 6 of their extended reasons the Tribunal said this:

6 "The Notice of Appearance had been filed on behalf of Linex Associates Ltd, which was said to be the change of name of the Respondent company. However, the Applicant gave evidence to us that the company still trades as Donnington Associates Ltd, from the same address and in the same business and, according to ex-associates with whom he has been in contact, the company is currently trading at the moment. We therefore have retained the name "Donnington Associates Ltd" as the correct Respondent."

9. It is unfortunate that the Tribunal were so ready to reject the statement in the notice of appearance that Donnington had changed its name to Linex. Whether or not Donnington had done so could easily have been checked by a company search, which it would seem Mr Burge had not troubled to commission. The Tribunal preferred instead simply to rely on his oral evidence as to the correct identity of the respondent and this is so notwithstanding that certain communications from the Employment Tribunal preceding the hearing had been addressed to Linex Associates Ltd, albeit that the name of the case was still described as "Burge v Donnington Associates Ltd".
10. The material before us appears to show that Mr Burge was indeed employed by a company originally called Donnington, but that Donnington had changed its name to Linex on 9 January 2002. On the same day a quite different company, one formerly known as Linex, changed its name to Donnington. This company had never employed Mr Burge. So the effect of the Tribunal's decision in paragraph 6 of their reasons was, so it appears, to name as respondent a company against whom Mr Burge had no claim and it was against that company that the Tribunal made their award. It can of course be said that the exchange of names by two companies in this manner was quite likely to lead to confusion, although such exchanges of name are not all that uncommon. But, if there was any potential for confusion in the name changes, Mr Boon had explained the correct position in the notice of appearance.
11. The result is that it would appear to us, at least on the basis of the material we have been shown, that the Tribunal arguably made their award against the wrong company. But, if so, we are not at present wholly convinced that the naming of the wrong company as a respondent was in fact an error of law. It appears to us rather more arguable that it was an unfortunate error of fact. What happened is that, despite a clear statement in the notice of appearance that the correct respondent was Linex, the Tribunal preferred Mr Burge's evidence that it was Donnington.
12. Nevertheless, Miss Simler, who appears on behalf of Donnington before us, argues that it can be said that this was indeed an error of law and the primary basis on which she would seek to found that argument is the proposition that, as the pre-hearing communications were addressed to Linex, it was only Linex which was given notice of the hearing and it was therefore a procedural error on the part of the Tribunal to change to Donningtion the name of the respondent which had been given notice of the hearing.
13. It appears to us that that point is at least arguable although whether ultimately it would carry the day remains to be seen. But, as it is at least arguable, and despite our provisional view that the error was essentially one of fact, we are disposed to give permission for this matter to proceed to a full hearing.
14. We have discussed with Miss Simler our own view that in the circumstances of this case – and given, as it seems to us, the high risk that the error may be an error of fact rather than law – that the pursuit of this matter to a full appeal, if other alternatives are available, may not necessarily be the right one. The practical alternative which occurred to us was that, if, as seemed likely, both Linex and Donnington were in the same control, namely that of Mr Boon, we really wondered what this appeal was all about, since the easiest way forward would have been for Linex to have tendered the money which was awarded to Mr Burge and to invite Mr Burge to accept that in full satisfaction of his claim as against Linex and Donnington. But that simple approach is one which it also appeared to us might not be available in practice if, as we thought was possible, Linex was in some sort of financial difficulty; and indeed it is. Miss Simler has informed us that it went into liquidation in the course of 2002 and that, although Mr Burge might expect to receive some dividend in the liquidation, he will not receive a dividend of 100 pence in the pound. So the solution which might have been available is not available and the problem raised by the appeal becomes a very real one.
15. In view of our primary thought that this was an error of fact rather than law, it appears to us – and Miss Simler is disposed to agree – that Donnington's better way forward is to make a prompt application to the Tribunal for a review of its decision under Rule 13 (1) of the Employment Tribunal Rules of Procedure 2001, although it will of course have to seek an extension of time for doing so under Rule 17. We consider, from what we have been told, that Donnington would have a good arguable case for such a review under Rule 13 (1) (b), (c) and/or (e). What we propose to do, therefore, is to give permission for this appeal to proceed to a full hearing; but having done so, to stay the further prosecution of the appeal, so as to enable Donnington in the meantime to make its application for a review. If the review is successful then that will probably be the end of the matter. If it is not, it will be open to Donnington to apply to lift the stay and progress the appeal to a full hearing; and of course it may be that Donnington may wish to appeal against the outcome of the review application as well. All that is for the future; but those are the directions which we propose to make.
16. Category C, 1hour.