United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KENNETH GLASS Solicitor Messrs Blackadders Solicitors 30 & 34 Reform Street Dundee DD1 1RJ
For the Respondent	MR THOM D YOUNG Solicitor Worklegal 8 Dewar House Carnegie Campus South Dunfermline KY11 8PY

SUMMARY

PRACTICE AND PROCEDURE

Preliminary issues

Appearance/Response

The claimant - respondent to the appeal - was dismissed as manager of Brechin City Football Club. He lodged claims for unfair dismissal and breach of contract. The response was on the face of it directed to breach of contract only; in any event it was a day late and was rejected. The Chairman reviewed her decision to reject it, acceded to the application and admitted the response. However, she made it plain that it applied only to the first respondent; and that it did not relate to the unfair dismissal aspect of the claim. The Football Club appealed against her finding that the response should be interpreted in such a limited way. Appeal upheld in part.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. In this action the Claimant was the former manager of Brechin City Football Club. He was dismissed from his employment and put in a claim for breach of contract the alleged breach being the failure to pay wages for the notice period and also unfair dismissal. This involved a claim also for automatically unfair dismissal on the grounds of the statutory dismissal procedures had not been complied with. He named as the Respondent not only the Club itself but also eight other Respondents who are the eight members of the management committee that runs the Club. It is a non incorporated association.
2. It is plain that the purpose of identifying those eight is to bind the Club to any ruling that is made. Technically it is the members of the management committee as representatives of the club who are the Respondents. The Club has no separate legal entity as non incorporated association. The Club is really no more than a short-hand for the appropriate Respondents. Although the claim did not say that the individual Respondents were named in a representative rather than in a personal capacity that was plainly the only basis on which they could be Respondents. This is not like a discrimination claim where it is alleged that individuals are personally liable in their own right; arising from their own personal conduct. No personal contractual or unfair dismissal liability is or it seems to me could have been alleged.
3. The Club put in a response. They did so a day late. In that response they did not deal with the unfair dismissal complaint at all. It seems that for some reason they may not have appreciated that such a claim was being advanced if the relevant box relating to dismissal they put N/A, i.e. not applicable. They stated that in fact they accepted that they were in breach of contract in not making the appropriate payment in lieu of notice and indicated that it was their intention to pay the proper sum. In that form the Respondent was identified simply as the Football club but there is a box in the form headed "Other Information" and in that box they made it plain that the response was intended to come from all the Respondents and they identified in terms the individual Respondents who had been named in the claim form.
4. The response was rejected because it was presented a day out of time. The Respondents sought a review of that decision. They did so by entering a fresh response. The original one would have been returned to them when it was rejected by the Tribunal. Curiously, in that fresh response they did not include an equivalent to box 6 indicating that the intention was that the response should be on behalf of the Club and the other individual representatives, nor did it indicate any intention to defend the unfair dismissal claim.
5. The application was determined on paper following written submissions requested from the parties. In the course of these submissions the Club sent two letters. The first on 30 June 2006 provided additional information which the Chairman was asked to take into consideration:

"… as Further and Better Particulars of my application for a review and indeed of our response to the claim".

6. There were two paragraphs dealing respectively with the unfair dismissal claim and a counter claim. With regard to the unfair dismissal claim it was simply put in rather bold terms that the Club's position was that the dismissal was procedurally and substantially fair. It was added that if it were found not to be the case, then the Claimant should not in all the circumstances be entitled to any compensation. The later letter was dated 22 August 2006. This again provided yet further information which the Chairman was asked to take into account as Further and Better Particulars, the application for review, and the response to the claim as before. Again the question of a counterclaim was raised and in addition there was a separate section dealing with the unfair dismissal claim.
7. The letter set out certain reasons why the Club considered that Mr Campbell should not be entitled to any compensation. It is to be noted it does not in fact deal with any of the procedural complaints that were made in the original claim, nor with the allegations of automatically unfair dismissal.
8. The Chairman considered all this documentation and she acceded to the application that the response should be admitted. She noted, however, that she was only allowing in the response that has been provided in the review application. She pointed out that effectively there were two limitations in that response as drafted. The first was that it was only made with respect to the Club and not with respect to the individual named Respondents. The second was that the response only dealt with the question of breach of contract and not unfair dismissal. These were limitations which effectively the Chairman was identifying as being contained within the response as drafted. She was making plain what it was that was being accepted, thereby preventing that issue arising for determination for a later date.
9. It followed on this analysis that there is no defence being advanced by the Respondents in relation to the unfair dismissal claim. There is of course a certain irony in all this because the Club had conceded the breach of contract claim and therefore, in effect, it was being given the right to defend the claim which would have conceded but was being denied the right to defend the claim which it is contesting.
10. The appeal is effectively against these two limitations. Perhaps more accurately, the thrust of the appeal is that the Chairman ought not to have taken the response at face value and allowed it to be subject to these two limitations. As to the first, namely that the only Respondent was the Club but not the individuals named in representative capacity, I have no doubt that the appeal should succeed. True it is that for some reason the second response (ie the one which was accepted by the Chairman) did not in terms refer to each Respondent but it seems to me it would make it a nonsense to treat the Club, which is not a legal entity at all, as being allowed to put in response and to treat the individuals who together, in their representative capacity, constitute the relevant legal entity as disentitled from responding.
11. In truth they are going to run precisely the same defences. There is no separate defence since the question is why the Club acted as it did. The Chairman adopted a formalistic approach which should not be adopted in cases of this kind. In fairness, Mr Young, the solicitor for acting for Mr Campbell in these proceedings, did not in his oral submissions seek to argue to the contrary.
12. The second limitation concerns the fact that only the breach of contract claim is defended in the response. The Club (by which I include the individual Respondents) say that it was unjust for the Chairman to treat the response in this way. They had made clear in later correspondence with the Chairman that they wished to resist the unfair dismissal claim. I note however, that no formal application to amend the original response was made; nor was a redrafted response submitted for consideration when the question of accepting the response was under consideration.
13. Mr Glass, acting for the Club, in an attractive submission argued that the Chairman should have had regard to the overriding objective and treated the letters, together with the final response, as in effect a single document setting out the true response of the Club and the other Respondents. He has to contend, and does not shirk from so doing, that it was perverse for the Chairman to have ignored the letters in this way. They provided further and better particulars of the response and these should have been treated effectively as part of the formal document. It was both desirable and necessary that this should be done to put the parties on an equal footing because the Claimant was represented before the Chairman but the Club was not.
14. Mr Young disputes this. He submits that it would make a mockery of the detailed rules dealing with the submission of the response, and rules relating to amendments, if the Chairman were obliged to look behind the formal response and, as it were, by gleaning information from other documents put together a fuller response than that contained in the formal document. He submits that it could not conceivably be said that the Tribunal in any sense made an error of law here.
15. He adds further that the additional material did not fact provide a full and proper defence to the unfair dismissal claim because it failed to deal at all with any of the procedural aspects of the original complaint. I accept this submission. In my judgment there is no error of law that can be identified in the approach of the Chairman. It may be that the Chairman could have indicated to the Club that if it wished to pursue its defence to the unfair dismissal claim which is indicated in correspondence, then it might wish formally to amend its response and make an application which would be considered in due course. But as Mr Glass fairly acknowledges, it was not an error of law for the Chairman to have failed to take that step.
16. It is often a difficult matter for Chairmen of Tribunals to decide how fully they should descend into the arena and effectively give advice to one or other of the parties as to how they might consider conducting future proceedings. In substance it seems to me that the claim here is that it was an error of law for the Chairman not to recognise that there were in substance two applications, one for the response to be admitted out of time, and the second for the response to be amended so as to incorporate material contained in the letters to which I have made reference.
17. Mr Glass relied on a decision of mine in the case of D&H Travel Ltd v Foster [2006] ICR 1537. He referred to this as an example of a constructive approach to some of the procedural difficulties that can arise in particular when litigants in person are before a tribunal. That was a case where, by failing to put in a response, the applicant was prevented under the tribunal rules thereafter from taking any part in the proceedings. A judgment was entered into against him in relation to liability but he was led to believe that he would be able to make submissions at the remedies hearing. He turned up ready to make those submissions and the Chairman took the view that he had no power to allow that step to be taken. The EAT pointed out that there was a route whereby the Chairman could have in fact brought about the situation whereby those submissions could have been made, and it would have been a proportionate response for that step to have been taken. In the particular circumstances of that case, the EAT exercised the discretion which resides normally in the employment tribunal and, having regard to the overriding consideration, in the interests of justice achieved the result that the individual was allowed to take part in the remedies hearing but not to upset the finding on liability.
18. Mr Glass submits that a similar step can be taken here. I do not accept that. No application to amend here has been made at all. If it were to be made then it seems to me that there would be certain relevant material which so far has neither been adduced before the Employment Tribunal nor before this Tribunal, namely the reason why the unfair dismissal defence was not put in the original response, or indeed in the further response that was lodged together with the application for review. That information has not been provided to me nor to the Employment Tribunal. Furthermore in the D&H Travel case there was an error of law that was identified, namely the misapprehension of the Chairman as to the scope of these legal powers. That is not so here. I do not think there was an error by the Chairman as to any understanding of her legal powers. She quite rightly, in my view, considered the response that had been put before her. I also note two further matters with respect to the correspondence. The first is that it also contained with the alleged defence a counterclaim relating to an alleged breach of contract by the Claimant. That is in fact not now being pursued for reasons which is not necessary to go into, but strictly it seems to me that the logic of the argument would be that in principle that should also have been admitted as part of the case which at that time the Club wished to advance.
19. The second point is that the letters purported to provide further and better particulars of the response. But in truth the material provided with respect to unfair dismissal was not further and better particulars. If anything they were for the first time an indication of the position which the Club wished to advance in relation to that part of the claim.
20. Accordingly, although I appreciate that the Club is left in a highly unsatisfactory position having won in relation to part of the appeal which in fact confers at this stage no practical benefit, I can find no error of law in the approach of the Tribunal Chairman to the analysis of the response which she had accepted. It seems to me that it is open for the Club to make an application if it wishes to do so to seek to amend the response out of time and to indicate, of course, why it is out of time, and why the response with respect to that part of the claim was not entered earlier. I say absolutely nothing about the merits of that. I should add also, however, that it is not desirable that additional legal costs should be incurred in fighting skirmishes of this kind, and I would hope that before legal proceedings go further the parties can look with a sensible eye to the prospect of settling this claim on a basis which recognises the reality of the situation from all their points of view.