United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANGUS GLOAG (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB
For the Respondent	MRS DENISE YEO (The Respondent in Person)


 


SUMMARY

PRACTICE AND PROCEDURE

Parties

Right to be heard

In substance the Tribunal's judgment made the Appellant a party for the first time and proceeded immediately to determine the proceedings against her without her having any opportunity to make submissions as to whether she should be a party or as to the merits of the claim against her. This was an error of law.

HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Miss Cathy Johanson against a judgment of the Employment Tribunal sitting in Ashford, Employment Judge Druce presiding, dated 19 August 2009. By its Judgment, the Tribunal awarded to Mrs Denise Yeo compensation for unfair dismissal in the sum of £2,805, together with £75 in respect of an unauthorised deduction from pay and £532 in respect of unpaid holiday pay. The Tribunal adjudged that the correct name of the party ordered to pay these amounts was: "Cathy Johanson, trading as Kaleidascope Child Care".
2. It is common ground that Mrs Yeo was an employee working within a business known as Kaleidascope Child Care from 6 February 2006 until 5 February 2009 when she was dismissed, ostensibly for redundancy. Mrs Yeo presented a claim form to the Employment Tribunal on 28 February 2009, making the three claims which the Tribunal in due course determined in her favour. The name of the Respondent was given as: "Kaleidascope Child Care". The address given was St Joseph's School, Ackholt Road, Aylesham, Kent.
3. A response was filed on or about 20 March 2009. The name of the organisation was given as: "Kaleidascope Child Care Limited". The address given was a Post Office box: PO Box 249, Faversham, Kent. The response denied the claims.
4. On 14 May 2009, the Tribunal issued an order. The case was to be listed for a one-day hearing. Case management directions in the usual form were given. The order was sent to: "Kaleidascope Child Care Limited" at the Post Office box address given.
5. On 4 June 2009 the Tribunal gave notice of hearing for Thursday 6 August 2009. The notice of hearing was again sent to Kaleidascope Child Care Limited at the Post Office box address given.
6. Mrs Yeo attended the hearing on Thursday 6 August 2009. No one attended on behalf of Kaleidascope Child Care Limited. The Tribunal was not asked for any reasons for its judgment. It appears to have decided that the appropriate respondent was: "Miss Cathy Johanson, trading as Kaleidascope Child Care", by taking evidence from Mrs Yeo and examining documents, such as a payslip and a cheque.
7. By September 2009, the judgment had come to the attention of Kaleidascope Child Care Limited. The company secretary, Mr John Johanson, applied for a review. He said the notice of hearing had not reached the company. He appeared to blame Mrs Yeo for this, although of course the notice of hearing was sent out by the Tribunal to the address given by the company. It seems to us, in spite of Mr Gloag's submissions, that the failure of the company to attend the hearing was entirely due to its own fault. The company should have had proper arrangements for ensuring that it collected mail from the address which it had given as its address for service.
8. The Tribunal refused the company's application for a review, pointing out that the notice of hearing was properly served at the address given, and that it was the responsibility of a party to advise of any change of address.
9. Against this background the company served a Notice of Appeal to the Employment Appeal Tribunal. This was of course in itself an error. The judgment had not been entered against the company.
10. Eventually, at a hearing before Burton J, permission was granted to amend the Notice of Appeal to show the Appellant as Miss Cathy Johanson. It was against her that judgment was granted; but she does not accept that she was trading as Kaleidascope Child Care. She says a company owned the business.
11. The principal ground of appeal put forward today is that Miss Cathy Johanson has had judgment entered against her when she had no chance to make any representations about being effectively joined as a party, and no opportunity to defend the proceedings in her own right.
12. On her behalf Mr Gloag accepts that a Tribunal may add a respondent on the application of any person, or on its own initiative (see rule 10(2)(k) of the Employment Tribunal Rules, a power exercisable by an Employment Judge). However, he submits that a new respondent must have an opportunity to address the Tribunal on the question whether joinder should be permitted, and in any event, before judgment is given, the new party must have an opportunity to take part in the hearing. This, he submits, is a fundamental principle of the common law, and the right to a fair hearing is in any event guaranteed under Article 6 of the European Convention on Human Rights.
13. Mrs Yeo submits that the judgment ought to stand. From the point of view of procedure, she submits that she has done nothing wrong at any stage. She has obeyed the orders of the Tribunal. The fact that the mailbox address given on the ET3 was not maintained or that mail was not collected from it is not her fault. She submits that the first time any company name was used in correspondence or on payslips was after the judgment had been entered. She says the Tribunal reached a decision as to the party to name by considering her evidence and the documentation she produced. She says that on any view there is a close link between Miss Johanson and the company. If the company had collected its mail properly, Miss Johanson would have attended the hearing, and the identity of the employer could have been determined in a way which would have bound her.
14. We should record what the parties are saying on the question of employer. It is Miss Johanson's case that Mrs Yeo was employed by a company - Kaleidascope Child Care Limited. Miss Johanson has produced evidence of the registration of such a company in 2002. She says that an existing business was taken over by the limited company in 2002. She says that the accounts of the business will show that employees are paid by the company; that the funding for the business from the county council goes to the company. She has produced a letter of offer of employment to Mrs Yeo, dated 15 January 2006, ostensibly written on behalf of the limited company, and a statement of terms and conditions of employment, dated 17 January 2006, ostensibly signed by Mrs Yeo, indicating that Miss Johanson employed her: "For and on behalf of Kaleidascope Child Care Limited".
15. Mrs Yeo, however, is extremely suspicious about what is said concerning the company. She points out that she signed the second page of the statement of terms of employment, but the first page names her as an SEN, whereas she believes she first undertook this role some time later. She points out that the cheque and PAYE documentation which she has make no mention of a limited company.
16. We sympathise with Mrs Yeo. If judgment had been entered against the company on 19 August 2009, there would have been no error of law, for the company had been notified of the hearing at the address it had given. But we have reached the conclusion that the Tribunal erred in law in giving judgment against Miss Johanson.
17. Until the hearing in August 2009, Miss Johanson had not been named as a party. The Tribunal's order and notice of hearing had been issued to the company. The judgment in substance made her as a party and proceeded immediately to determine the proceedings against her. We consider that the Tribunal fell into error by proceeding immediately to enter a judgment against her.
18. If an order to join a new party had been made by an Employment Judge alone in the exercise of his case management powers, on his own initiative, rule 12(2) would have required that the party be given notice of the order and an opportunity to set it aside. Fairness requires no less if the effect of an order or judgment made by the Tribunal at a hearing is to join a party not named before. Moreover, it was wrong in principle to give judgment against the new party at a hearing which she had not been notified to attend. It follows that the appeal must be allowed and the case remitted for rehearing before a fresh Tribunal.
19. There is one other step we will take today. We will make an order which joins both Miss Johanson and the company Kaleidascope Child Care Limited as Respondents. It seems to us just and convenient for both of them to be respondents so that at the next hearing both of them are before the Tribunal, which will be able to give judgment against whichever party is found liable. We therefore order that they both be joined as parties, and we will remit the case. An Employment Judge will consider it on paper and he will give directions before it is listed.