Sharma v The Hindu Temple [1997] UKEAT 740_96_1501

EAT

Sharma v The Hindu Temple

[1997] UKEAT 740_96_1501 · 1997-01-15

JUDGE C SMITH QC:

This is an appeal by Mr Ramesh Kumar Sharma against the decision of an Industrial Tribunal sitting at Reading on 12 June 1996, when the Industrial Tribunal dismissed his application for a review of a decision of an Industrial Tribunal dated 11 May 1993, and for leave to join an additional party under respectively regulations 11 and 17 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 .

The Industrial Tribunal decided that it had no power to grant a review since the same issue had been determined against the Appellant at an earlier review and, in the alternative, if it did have a discretion, it exercised its discretion against the Appellant, both with regard to the review and with regard to the application to join new parties as Respondents to the proceedings before the Industrial Tribunal, which he had brought by way of complaint for unfair dismissal.

There is a long and unfortunate history to this matter. It appears that the Appellant was employed as the Priest at the Hindu Temple in Slough with effect from April 1987. From the document that we have seen today, his contract was apparently made on the notepaper of the Hindu Cultural Society, Slough. That Society was a registered Charity and an unincorporated association and would, in that case, only be amenable to suit by its Trustees and members of the Executive Committee for the time being, being joined as parties to any proceedings. The statement of terms of employment in that document read: "Statement of Terms of Employment on which the Hindu Temple, Sough, is employing you at the above date" and then went on to set out the conventional details of terms of employment.

In due course, on 3 April 1989, the Appellant was summarily dismissed and excluded from the Temple. He brought proceedings for unfair dismissal. By his Originating Application he named, as employer, four individuals, as Trustees of Hindu Temple. By Notice of Appearance entered into by those four persons, the employer was described as being the Hindu Temple. Those proceedings were heard and the Appellant was successful in establishing unfair dismissal. At the hearing, not only the four persons named as Trustees were present, but in addition a Mr Anand, who is one of the persons the Appellant sought leave to join as the new Respondents in the proceedings before the Industrial Tribunal, was also present. It is not quite clear what role Mr Anand played, but he was certainly well aware of the proceedings and attended the hearing before the Industrial Tribunal.

Having obtained an order for substantial compensation for unfair dismissal totalling some £10,000 against the Hindu Temple from the Industrial Tribunal, Solicitors for the Appellant wrote seeking to enforce the award against the Hindu Temple. There followed self-explanatory correspondence in which those representing the charity pointed out the status of the Hindu Cultural Society and advised the Appellant to obtain what they called at that time a "Certificate of Correction" from the Industrial Tribunal as to the parties who should have been joined as employer.

After further attempts to enforce the award by letter in March 1994, Solicitors for the Appellant sought to amend the proceedings to name the Respondents as "the Trustees and Executive Committee Members for the time being of the Hindu Cultural Society, Slough". They wrote to the Tribunal asking the Tribunal to consider such an application ex-parte , but the Tribunal declined to consider any such application by its letter dated 25 March 1994.

The Appellant and his advisers then proceeded to try and enforce the order of the Industrial Tribunal in the County Court against the new Respondents. By November 1994 he had succeeded before the District Judge. There followed an appeal which was not finally determined until May 1995 when the appeal was allowed by His Honour Judge Hague QC, with costs. The County Court Judge decided that, under the relevant County Court Rules, the County Court only had power to enforce an Industrial Tribunal judgment against the party named in the award. The learned Judge also expressed views obiter dicta as to whether it was, in any event, appropriate to allow an amendment to add a party to the effect that it was only permissible in cases of mere misnomer.

There was then further delay and ultimately the matter came before the Industrial Tribunal as a result of the Applicant's application dated 13 February 1996. By its decision the Industrial Tribunal held first of all that the application was, in effect, a second attempt to review the original decision in 1993, and this was not permissible under the authority of Flint. However, having considered the exchange of correspondence, we do not consider that that exchange of correspondence in March 1994 amounted in any way to the hearing of an application, either for a review under regulation 11, or under regulation 17, to add or substitute a party. No notice of the application was ever given to the new Respondents and, in our judgment, it did not amount to an application for a review or for an order under regulation 17. The matter simply was not considered at all, at that stage, in any substantive way. The merits were not entertained at that stage in any way by the Industrial Tribunal. Accordingly, in our judgment, the Industrial Tribunal had to go on to consider, as they did, whether they should allow the Appellant to amend the complaint to add the new Respondents.

It is Mr Lo's submission, on behalf of the Respondents, that the Industrial Tribunal did exactly that and that they were correct in concluding first, in substance, that this was not a case of mere misnomer and secondly, in exercising its discretion in the way that it did. He submits that they were entitled to find that there was a genuine issue as to who the employers were, namely whether they were the original Respondents or the new Respondents. He points to the fact, as was the case, that there was a power struggle going on between the two factions, namely the old Respondents and the new Respondents, for the de jure and de facto control of the Hindu Temple in Slough. At the time when the Appellant was employed and, indeed, up to his dismissal, it was the old Respondents who had got control of the Hindu Temple.

There were lengthy proceedings in the Chancery Division in which ultimately, the Court decided that the new Respondents were entitled to be in control of the Hindu Temple. Therefore, Mr Lo submitted, that the Industrial Tribunal were correct in concluding that there was a real doubt as to who the employer was. Accordingly, he submitted that applying the guidelines laid down by Donaldson J, as he then was, in the case of Cocking v Sandhurst Ltd

[1974] ICR 650

, at page 657 the Appellant could not bring himself within number 6 of those guidelines:

"(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against."

In our unanimous judgment however, it is plain that the Appellant's intention at all times was to claim against his employers and he was intending, at all times, to sue those who were legally responsible on behalf of the charity for employing him. He was not in any way concerned with any power struggle that might have been going on within the charity. He was simply concerned to sue those people who were in fact responsible for employing him. In our judgment, the Industrial Tribunal should have decided that this was a case of genuine mistake and that the Appellant always intended exclusively to sue whomsoever his true employers were.

Accordingly, we have had then to consider whether the Industrial Tribunal has properly exercised its discretion, in the light of the grounds set out in paragraph 40 of its decision, to refuse the application.

In our judgment, the Industrial Tribunal should have taken into account the overwhelming merit of the Appellant's case in that he had succeeded in establishing unfair dismissal and had got an order against the Hindu Temple. In our judgment, the new Respondents' position can be protected since we direct that the new Respondents shall have the right to make representations to the Industrial Tribunal that they were, in fact, not the employers and are accordingly not liable to meet the award. That application can be heard on its merits by the Industrial Tribunal should it be necessary for that matter ever to be litigated.

We have, of course, been most concerned at the delay in this matter, but it is to be noted that some of the delay was caused by the refusal of the Industrial Tribunal, on our findings, to consider a review in March 1994, and by the bringing of County Court proceedings in an attempt to enforce the judgment against the new Respondents.

Accordingly, at the end of the day, we consider that the discretion of the Industrial Tribunal was improperly exercised here and accordingly we consider that the appeal should be allowed and the new Respondents should be joined as parties on the terms which we have set out above.