Henry v Sargent & Ors [1996] UKEAT 736_95_0104

EAT
Henry v Sargent & Ors
[1996] UKEAT 736_95_0104 · 1996-02-26

JUDGE PUGSLEY :

This is an appeal from the Industrial Tribunal sitting at London (South) on 28th April 1995. Their decision was that originating application be struck out.The originating application was presented on 14th July 1994 naming the above named respondents and giving their address as Ascom Hasler Ltd, Commerce Way, Croydon. In box 1 of the IT1 the complaints were listed as:

"1) Unfair Dismissal

2) Unfair selection for redundancy3) Unfair Dismissal due to racial discrimination"In circumstances which are not altogether clear, a duplicate originating application was also served. Miss Dinah Rose who appears for the respondents in this case, makes a point that both originating applications, one of which is typed and one of which is in manuscript, list under the `name' part of box 4 the three respondents and only list Ascom Hasler Ltd in the `address' part of that box. Miss Rose asks us to draw from that the inference that it was not mere accident that the company who employed the applicant namely Ascom Hasler Ltd, were not cited as respondents.On 1st September 1994 Messrs Simmons & Simmons presented separate notices of appearance on behalf of each respondent and in that they stated as follows:-
"It is denied that the Applicant has at any time been employed by any of the Respondents. The Applicant was employed between 13th August 1990 and 22nd April 1994 by Ascom Hasler Limited, known until 17th January 1991 as Hasler (Great Britain) Limited ("the Company"). In the premises, the Respondents are not liable for any unfair dismissal or racial discrimination allegedly suffered by the Applicant. ..."
As a matter of caution, the rest of the notice of appearance without prejudice to that contention, goes on to deal with the case on its merits as far as the company is concerned.In due course the matter was listed for hearing on 28th April 1995. At that stage Messrs Simmons & Simmons pointed out that no proceedings had been listed against Ascom Hasler Ltd, and they stated that they wished to make a preliminary submission on behalf of the three named respondents that the tribunal had no jurisdiction to hear the claim against them. They contended that the three named respondents could not be liable to the applicant for unfair dismissal since they were not her employer. Further they contended that the tribunal had no jurisdiction to hear the claim of racial discrimination without an employer being named having regard to the provisions of Section 4, 32 and 33 of the Race Relations Act 1976 . In due course the matter was heard as a preliminary point when the applicant asked for leave to amend the originating application to include the company as a fourth respondent.Throughout the proceedings the applicant was represented by a Ms B Smith from the Citizens Advice Bureau. The respondents were represented by Counsel at the hearing which took place on 28th April 1995.The most appropriate course is to set out paragraph 6 and 7 of the tribunal's decision which reads as follows:-
"6 At the present hearing the Respondents contended that the proceedings had not been properly commenced. A complaint of unfair dismissal under section 67 of the Employment Protection (Consolidation) Act 1978 had to be brought against the Applicant's employer. This had not been done. Under sections 4 and 54 of the Race Relations Act 1976 the complaint was also against the employer. The employer was vicariously liable under section 32 of the Act for the acts of his employees (the named Respondents in this case) committed in the course of employment. The employee might in turn be liable under section 33(2) for aiding the employer's unlawful act. It was therefore essential to establish the company's liability first. The remedies under the Act were limited to the employer's liability. In the circumstances, the named Respondents in the present case were not liable at all and there was no valid application to be amended.
7 The Respondent contended that the originating application did not comply with Rules of Procedure 1(1)(b) and (c) in that it did not set out the names and addresses of the person or persons against whom relief was sought or the grounds, with particulars thereof, on which relief was sought. They drew attention to Dodd v British Telecom (1988) ICR 116, in particular at 124C-E, and Cocking v Sandhurst Ltd (1974) ICR 651 at page 656H. We have come to the conclusion that these contentions are correct, that this is not an appropriate case for amendment and that a fresh application must be presented if the claim is to proceed. We express no view on the further problems that would no doubt arise in such a situation, e.g. the question of statutory time limits. Similar problems would arise even if the originating application were amended."The tribunal then went on to strike out the originating application.Mr Westgate, who appears for the appellant on the appeal and who did not appear below, argues that the tribunal ought to have regarded Ascom Hasler Ltd as a respondent. He makes a point that an IT1 should be read as a whole avoiding technicality. He points out that Rule 1(1) of the Rules of Procedure requires that an application should be in writing and shall set out:
"(a) the name and address of the applicant ... (b) the names and addresses of the person or persons against whom relief is sought; and (c) the grounds, with particulars thereof, on which relief is sought."
Mr Westgate, quite properly, argues that the rules do not prescribe any particular form to be used by an applicant. He points out that the applicant identified the company by its address in box 4 and he also states that it is clear from the grounds set out in box 10 that the company was the applicant's employer since she complains about the company's decision to make her redundant. He points out that in box 1 the applicant refers to a claim for unfair dismissal and mention is made of redundancy, both of which could only be brought against her employer. He argues that read in that context the IT1 did include the company as a person against whom relief was sought and that the tribunal erred in finding that they had not been joined as a party initially.Miss Rose argues that this contention is quite contrary to the wording of the claim. It has already been noted that two originating applications were filed and in neither of those was the company named as a respondent and as noted, Miss Rose suggests that an inference can be drawn from that, that it was not a mere accident.We have come to the view that we cannot say that the tribunal was wrong in law in coming to the view that the company had not been named as a respondent. It may be that other tribunals may have taken a different view as to the documentation. However, having regard to the fact that the company certainly were not named as a respondent, we consider it was open to the tribunal to reach the unanimous decision which they did that taken as a whole, it could not be said that the company had been named as a respondent.We do consider that Mr Westgate is on far stronger ground when he contends that the tribunal should have exercised their discretion to join the company as a respondent. He points out that the rules are directory and not mandatory and relies upon Burns International Security Services (UK) Ltd v Butt [1983] ICR 547 approved in Dodd v British Telecom [1988] ICR 116 . Moreover, he points out that in the case of Cocking v Sandhurst Ltd [1974] ICR 650 , a decision of the National Industrial Relations Court it is made quite clear that a complaint did not have to be free of all defects or be in the form in which it finally came before the tribunal for adjudication. Cocking v Sandhurst Ltd was followed in the case of British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222 . In the headnote of that case the Court of Appeal pointed out that in deciding whether or not to allow an amendment to an originating application the test to be applied is that laid down by the NIRC in Cocking v Sandhurst Ltd "what are the relevant hardships expected to be suffered by the parties if the amendment is or as the case may be is not allowed?" "What would be the injustice to the parties respectively, again, if the amendment is or is not to be allowed?" It is trite to point out that Industrial Tribunals were established to provide an informal way in which parties could have their disputes litigated without the necessity of incurring expensive legal costs which would often be out of all proportion to the financial amount in question. The rules which govern an Industrial Tribunal in terms provide that a tribunal has the power to regulate its own procedure under Rule 13. Moreover, express powers are conferred on the tribunal to take such steps of its own motion it considers appropriate. Thus under Rule 1(2):
"Where the Secretary is of the opinion that the originating application does not seek or on the facts stated therein cannot entitle the applicant to a relief which a tribunal has power to give, he may give notice to that effect to the applicant stating the reasons for his opinion and informing him that the application will not be registered unless he states in writing that he wishes to proceed with it."
Further, under Rule 17(1):
"A tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party, and give such consequential directions as it considers necessary."
There is a parallel rule under Rule 17(2) which enables the tribunal of its own motion to dismiss a respondent from the proceedings.We consider it should be noted that there is no evidence or indication that the tribunal ever exercised any of these powers. Although it is right that the applicant's representative did not take up the fact that the respondents were at an early stage pointing out that they were not the applicant's employer, it can with equal fairness be pointed out that the tribunal did not itself, despite that matter having been drawn to its attention, take such steps as would have been available to it under the rules.The tribunal did not embark upon the balancing exercise which the case of Cocking v Sandhurst suggests was appropriate. Although the applicant was represented, she was represented by someone who worked for the Citizens Advice Bureau and we have no indication at all as to her expertise or experience in dealing with these matters. We think that it would be wholly inappropriate to judge everyone who represents an applicant in the Industrial Tribunal by the unrealistic yardstick of the expertise one might well expect from a specialist lawyer in these matters.Although the employer was not named as a respondent as the tribunal found, we consider the IT1 should be read as a whole avoiding arcane technicality and that there has been substantial compliance with the rules.In these circumstances, we consider the case should be remitted to a differently constituted tribunal to determine the issue as to whether or not the applicant may be allowed to amend the originating application to include the company as a respondent to this action. In our view, there is in the original tribunal decision a failure to examine the issues in the light of the guidelines laid down in Cocking v Sandhurst Ltd . We cannot say on the basis of the decision that we have seen, that the tribunal has exercised its discretion and has rather assumed that if the IT1 could not be construed as including the company as a respondent, then that was the end of the matter.Mr Westgate has made the rather bold allegation that the application as far as the first, second and third respondents could in any event continue, because it is an allegation of the Race Relations Act . He has said to us, that in the event of his arguments succeeding on either of the first two grounds, he would not wish to pursue it. In deference to the arguments he and Miss Rose have addressed to us, all we feel it necessary to say is that we consider that it would be a very bold step to say that an employee may be a respondent in a race discrimination case, even though the employer is not a respondent. In our view, that would be to extend the law as generally understood. It is difficult to see how there is a course of action if no allegation of unlawful conduct is made against the employer who is not a respondent to the action. However, as Mr Westgate has not sought to advance that matter if he succeeds on any other of the two matters that form that basis of his skeleton argument, we do not feel we need give further consideration to it.