MR D T DOWLING v (1) HSF LOGISTICS (2) MR M ROSE [2000] UKEAT 1404_00_1512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1404_00_1512Case No Appeal No. EAT/1404/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D T DOWLINGAPPELLANT(1) HSF LOGISTICS (2) MR M ROSERESPONDENT
Before
Mr Justice Bell Ms G Mills Mr J C ShrigleyDate 15 December 2000
[1]APPEARANCES For the Appellant MR COLIN CHAPMAN (Solicitor) Messrs Barnes Marsland Solicitors 51 Hawley Square Margate Kent CT9 1NY MR JUSTICE BELL : This is the preliminary hearing of an appeal by Mr Dowling against the decision of a Chairman of Employment Tribunals refusing his application to join Mr Mark Rose as a second respondent to his Originating Application complaining of unfair dismissal. Mr Dowling's form IT1 was lodged with the Central Office of Employment Tribunals in Scotland on 10th April 2000 and forwarded to the Office of the Employment Tribunals at Ashford which received it on 13th April 2000.[2]The form which was completed and sent by Mr Dowling in person gave the dates of his employment as February 1998 to February 2000. It named his employer as HSF Logistics of an address in Holland. It is not entirely clear that the proceedings were served on HSF out of the jurisdiction. Mr Colin Chapman, who appears for Mr Dowling today thinks that they were, but if they were it was before his firm came into the matter. In any event, no Notice of Appearance has been received from HSF.[3]The evidence presently available as to whether Mr Dowling was employed by HSF or by Mr Rose, who it appears may have acted in some agency basis in providing HGV drivers like Mr Dowling for HSF, is equivocal.[4]On 26th June 2000 Mr Dowling consulted solicitors, Barnes Marsland, Mr Chapman's firm, who corresponded with solicitors for Mr Rose, Saunders & Co, in an attempt to find out just who was Mr Dowling's employer. It is suggested that Mr Rose's solicitors have been less than forthcoming, but however that may be the indications that Mr Dowling was an employee of HSF are statements of Mr Rose and HSF to that effect and the fact that Mr Dowling's work was controlled by HSF who supplied the vehicle which Mr Dowling drove and who terminated his employment. On the other hand, it appears that Mr Dowling's wages were paid by Mr Rose or one of his trading companies, and payslips were prepared by Mr Rose who also prepared Mr Dowling's P60. Mr Rose also produced a memorandum on the notepaper of one of his firms, Southcroft Business Services. The memorandum was dated 1st February 1998 and given to Mr Dowling to use at border control. The material part of it read:
""the above named has been employed by Southcroft Business Services/Agents as an LGV driver. He will be placed by H.S.F. Frederiks International Transport as an LGV driver, driving between the UK and Holland. The driver will take all instructions from H.S.F. Frederiks International Transport."
Southcroft Business Service is a firm of Mr Rose's.[5]An Employment Tribunal has power to direct any person to be joined as a party under Rule 17(1) of the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 . On 14th September 2000 Mr Dowling's solicitors applied to the Employment Tribunal for leave to add Mr Rose in two trading names, one of which was Southcroft Business Services. The letter making the application made clear the matters from which it might be concluded that Mr Rose was Mr Dowling's employer, to which we have already referred. The application was refused by letter from the Office of Employment Tribunal in Ashford dated 5th October 2000. The material part read:
"The application to join Mr Rose as a Respondent is refused, because the Originating Application and the Applicant's letter received on 9 June 2000 make it clear that the Applicant regards the respondent as his employer. The Originating Application has been served on the Respondent out of the jurisdiction with the leave of the Regional Chairman. The Respondent has not entered a Notice of Appearance. If the Tribunal makes an Order in the Applicant's favour in due course, the usual means of enforcement in the County Court are available to him."
[6]In our view, it is arguable that those reasons for refusing the application ignore the points that, firstly, an applicant may genuinely believe that one party is his employer at the time of his Originating Application but then receive information or advice that his employer is or may be another, and, secondly, that whether or not an existing respondent has entered a Notice of Appearance there is unlikely to be a finding or award against that respondent if the evidence eventually shows that the applicant is employed by someone else altogether. It is in our view arguable that the Employment Tribunal in rejecting Mr Dowling's application did not apply its mind to the relative justice or injustice to Mr Dowling or Mr Rose of joining or refusing to join Mr Rose as respondent and that had it done so it would have given leave for Mr Rose to be joined. It is arguable in our view at the very least that the application to join Mr Rose merited an oral hearing, upon notice to Mr Rose, which might well have revealed further relevant information as to exactly who Mr Dowling's employer was.[7]In our view there is sufficient apparent merit in Mr Dowling's appeal against the Chairman's summary decision to allow this appeal to go ahead. We are conscious that even if Mr Rose is eventually joined as a respondent the provisions of section 111(2) of the Employment Rights Acts 1996 may mean that the Employment Tribunal has no jurisdiction to hear this complaint against Mr Rose, or that that may be a feature in the argument concerning grant of leave to join Mr Rose in the first place, but we certainly cannot judge those matters at this stage today. Quite apart from anything else, Mr Rose has not had the opportunity to appear before us today.[8]We direct that notice of the date of hearing of the full appeal be served upon Mr Rose together with copies of the Notice of Appeal and any evidence which is to be produced by the appellant and that HSF be informed by letter of the hearing date of the appeal and the same material. We give leave to the appellant, HSF and Mr Rose to file evidence which in the appellant's case should include the relevant correspondence, payslips, P60 and the 1st February 1998 memorandum.[9]The time estimate is one hour, Category B. Skeleton arguments should be lodged not less than 14 days before the full appeal hearing.