MS S PEARCE v MAYFIELD SCHOOL [1999] UKEAT 675_99_0710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 675_99_0710Case No Appeal No. EAT/675/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S PEARCEAPPELLANTMAYFIELD SCHOOLRESPONDENT
Before
Mr Justice LindsayDate 7 October 1999
[1]APPEARANCES For the Appellant MS S DREW (of Counsel) Instructed by: Messrs Tyndallwoods Solicitors Windsor House Temple Row Birmingham B2 5TS For the Respondents MR A TABACHNIK (of Counsel) Instructed by: Mr R Kane Principal Employee Relations Adviser Hampshire County Council Winchester Local Office Clarendon House Romsey Road Winchester SO22 5PW MR JUSTICE LINDSAY (PRESIDENT): We have before us for directions, and directions only, an appeal by Ms S Pearce in a matter which is formally entitled Ms S Pearce v 1) The Governing Body of Mayfield Secondary School 2) Hampshire County Council . There was a decision of the Chairman, Mr I A Edwards, and two members Mr Tucker and Mrs Redknap. A decision was arrived after a hearing of six days or so in March 1999 and the decision was sent to the parties on 1 April 1999. Looking at the front page of the unanimous decision of the Tribunal, the first matter they resolved upon was this:
"1 The application against the Second Respondent, Hampshire County Council, is dismissed on withdrawal by the applicant."
When the Notice of Appeal came to be lodged on behalf of Ms Pearce (and it is dated 11 May of this year) the heading is "Shirley Pearce v 1) The Governors of Mayfield School 2) Hampshire Education Authority". Paragraph 5 of that Notice of Appeal says:
"5. Parties to the proceedings other than the Appellant were the Hampshire Education Authority and the Governing Body of Mayfield School, who were both represented by Ron Kane, the Principal Employee Relations Adviser, Hampshire County Council…"
[2]That Notice of Appeal, which is a full and thoughtful Notice of Appeal, does not set out any challenge to heading 1 of the Employment Tribunal's decision, namely that Hampshire County Council was dismissed on withdrawal by the applicant. But there was a degree of confusion and it was taken up in correspondence and it ultimately transpired that, although there had indeed been a dismissal of Hampshire, it could not be described as having been on withdrawal by the applicant. The position as we have been told it to be today was that at an early stage in the hearing before the Employment Tribunal, presumably therefore on 15 March, the first day, the question arose as to whether Hampshire County Council should be and remain a party.[3]The Employment Tribunal was then addressed by Counsel, Ms Drew, who also appears before us today, on behalf of Ms Pearce. She argued that it was necessary for the resolution of all issues to have Hampshire County Council before the Employment Tribunal. She lost that battle. Orally only, the Employment Tribunal gave its decision that Hampshire should be dismissed and so, as I mentioned earlier, there was no question of a withdrawal by Ms Pearce of her complaint against Hampshire. It was rather that the issue came up and was ruled against Ms Pearce's interest and there was then the indication from the Chairman that Hampshire County Council should be dismissed. This was before any evidence was adduced.[4]There was no application by Ms Pearce's advisers for an adjournment to reconsider the new position as it then emerged. There was no application that reasons for the dismissal for Hampshire should be given in writing. There was no application that the matter should be suspended so that Ms Pearce's advisers could appeal to the EAT against that dismissal. The case therefore proceeded. In formal terms the position thus was that Hampshire County Council had no opportunity thereafter, because it had been dismissed from the case, either to address argument to the Tribunal or to adduce evidence before the Tribunal. And yet, despite that, the application now is that the Education Authority should be re-added to the matter so to be a party to the appeal. The object is so that they should be bound by the appeal. So one has what is, as it seems to us, an extraordinary position that there is an appeal which is attempting to bind a party in respect of a decision below in a case from which it was dismissed, as to which it could address no argument and in respect of which it could adduce no evidence. It might be added that the Notice of Appeal lodged in May of this year also raises no issue claiming that Hampshire should be added as a party. So not only was there no appeal at the oral decision when the Chairman indicated that Hampshire was dismissed, there was no appeal in formal terms in the Notice of Appeal either.[5]It is obviously desirable that litigation should have before the Tribunal or Court concerned all necessary parties. It is the responsibility of the parties between them to ensure that that is the case. Here Ms Pearce wanted Hampshire County Council to be a party but failed in her attempt to have that as the result. It is in fact a strange position in that Ms Drew argues that in any event Hampshire County Council will be bound by the appeal in point of law by reason of statutory provision, which we see, if anything, as an argument against joining them rather than as an argument in favour of joining them. Moreover, it is not the case that one can be assuredly certain that the case below would have proceeded exactly as it did had Hampshire remained a party. Mr Tabachnik, who appears on behalf of the Respondent Mayfield (presumably also today on behalf of the Respondent Hampshire) says that there were two witness statements from the County Council which, on its dismissal, were no longer further considered and were withdrawn. Quite what was the relevance of those is not a matter for us to speculate upon, but, plainly, the possibility that the case would have proceeded differently had Hampshire remained cannot be discounted.[6]Ms Drew draws to our attention Rule 18 of the Employment Appeal Tribunal Rules which indicates that this Tribunal may, on an application of any person or of its own motion, direct that any person not already a party to the proceedings, can be added as a party, and may give consequential directions. But it does seem to us that an extremely strong case would need to be made for the rejoinder of a party with the intent that it should be bound by an appeal where we have said, more than once, the position was that, having been dismissed, it could neither address argument nor adduce evidence. Ms Drew has advanced a lively argument but in our view it fails and we shall not re-add Hampshire or allow it to be re-added or hear argument further upon the issue of whether Hampshire should be rejoined or joined as a party to the appeal.[7]We direct that the full hearing should not be earlier than 8 December. We say that because, even with the expedition in mind, we do not expect there could be offered a hearing here of one and a half days earlier than 8 December. We also hear the argument that the parties wish each to engage leading counsel of particular identity and it is unlikely that they should either of them or both be available than any date earlier than 8 December. But chiefly, having regard to the state of the list here in any event, we do not think there could be a hearing any earlier than 8 December. So the hearing shall not be earlier than 8 December and we indicate that the parties are first to communicate with each other their acceptable dates, in terms of the availability leading counsel, being dates on or after 8 December. We hope that a common date can be found in December and when a series of common dates are found, be it 8 December or later, as soon as those dates are established between the parties then the parties can approach the listing office here and see if any of those common dates can be accommodated. But the hearing will not be earlier than 8 December.