MISS R HOLMES v ROBERTS LOGISTICS LTD [2001] UKEAT 299_01_1203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 299_01_1203Case No Appeal No. EAT/299/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS R HOLMESAPPELLANTROBERTS LOGISTICS LTDRESPONDENT
Before
Mr Justice LindsayDate 12 March 2001
[1]APPEARANCES For the Appellant MS D CHRISTODOULOU (Solicitor) Plumstead Community Law Centre Ltd 105 Plumstead High Street Plumstead London SE18 1SB For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : I have before me an interlocutory appeal made by Miss Rachel Holmes in the matter Holmes v Roberts Logistics Ltd . Ms Christodoulou appears for Miss Holmes this afternoon and no one appears for Roberts Logistics Ltd which is a company, as will transpire, in liquidation. The liquidator has been notified but no one attends to represent that company in liquidation. The appeal concerns the refusal of the Employment Tribunal to add an associated company of Roberts Logistics Ltd, namely, Roberts Transport Ltd, as a co-respondent.[2]The chronology is as follows: on 4th August 2000 Miss Holmes, who then thought, at any rate, that she was employed by Roberts Logistics, was dismissed by Roberts Logistics. On 24th September 2000 Roberts Logistics went into voluntary liquidation. It has ceased to trade.[3]On 24th October 2000 Miss Holmes presented an IT1 for automatic unfair dismissal, for what one might call "ordinary" unfair dismissal, for sex discrimination, breach of contract and unlawful deduction from wages. All those claims were presented as against Roberts Logistics Ltd only. She claimed to have been employed from 13th July 1998 to 4th August 2000. She made allegations in relation to her pregnancy, to having been made redundant whilst there was, she said, no true redundancy, and without consultation. She said, in any event, that in contractual terms she had had inadequate notice of termination and had not been sufficiently paid. On the same day, she raised a sex discrimination questionnaire addressed to Roberts Logistics.[4]On 20th November 2000 Roberts Logistics, notwithstanding that it was by then, (unknown to Miss Holmes) a company in liquidation, lodged its IT3 which disclosed, for the first time, that it was in voluntary liquidation. Its case was that the associate company, Roberts Transport, had ceased to work for Safeway, which was a large customer of that associated company; that that had had a knock-on effect on Roberts Logistics; that Rachel Holmes' job had been put in jeopardy; there was, they said, a true redundancy, quite unrelated to her pregnancy; there had been found no suitable alternative employment and there was no sex discrimination. That was, broadly speaking, the nature of the case.[5]On 29th January 2001 Miss Holmes' advisers raised a request for particulars in writing, especially relating to the nature of the voluntary liquidation and whether there had been any and, if so, what transfers from employment with Roberts Logistics to employment with Roberts Transport?[6]On 12th or 13th February 2001, having had no answer to their informal request, Miss Holmes' advisers asked the tribunal for an order. On 28th February 2001 the tribunal did make an order for inspection (which, in effect, included an order for particulars, although it is not actually drafted in that way) and it gave the respondent Roberts Logistics until 7th March 2001 in order to comply with it.[7]At some stage, and I am not sure when, the hearing date had been fixed for 13th March 2001, namely tomorrow. On 1st March 2001, still not having received the particulars which they had asked for, Miss Holmes' advisers applied to the tribunal that Roberts Transport should be added as a co-respondent. On 2nd March 2001 Miss Holmes' advisers were given details of the liquidation and the transfer or not of employees by way of purported compliance with the request for particulars and the order which the tribunal had made.[8]On 5th March 2001 Miss Holmes' advisers again asked that Roberts Transport should be added as a respondent.[9]On 5th March 2001 the company Roberts Logistics, although in liquidation and still describing itself without that addition and without, it seems, the information having come from the liquidator, purported to answer the sex discrimination questionnaire which had been raised so much earlier.[10]On 7th March 2001 the tribunal, writing by Denise Duffus for the Regional Secretary of the Tribunals, said this, writing to Plumstead Community Law Centre and Ms Christodoulou as advisers to Miss Holmes:
"I acknowledge to the Applicant's letter of 5th March 20001 in which you ask for Roberts Transport Ltd to be joined as respondent's in this case. This has been refused, there is insufficient time to join in Roberts Transport but in any event the Applicant's employment ended in August 2000 and therefore the Transfer of Undertaking Regulations can have no consequence at this late stage. However the Applicant should notify the Tribunal by return whether the liquidation is compulsory or voluntary and in the latter event whether a members or creditors voluntary liquidation. The hearing remain listed for Tuesday 13th March 2001."
[11]On 8th March 2001 Miss Holmes' advisers wrote again to the Employment Tribunal asking that they should reconsider the matter. On 9th March 2001, the tribunal, by telephone, indicated that it would not change its decision and, therefore, that Roberts Transport would not be joined.[12]On the same day, 9th March 2001, the appellant, Rachel Holmes launched a Notice of Appeal to come here to the tribunal, which she has done at 2 o'clock today. The main hearing remains for 13th March 2001, tomorrow.[13]Two possibilities are sought to be raised by Miss Holmes seeking to involve Roberts Transport. The first is that all along she was employed by Roberts Transport. This has not been explored by Ms Christodoulou. It is, perhaps, a little implausible, but it is asserted on instructions and who knows what evidence might show that there had indeed been confusion or ambiguity and that, who knows, it could be that Rachel Holmes was indeed employed by Roberts Transport all along. They are plainly closely associated companies.[14]The other possibility is that her redundancy and dismissal was connected with, possibly with a view to, a transfer of Roberts Logistic's business and some Roberts Logistic's employees to Roberts Transport and that accordingly that the TUPE principles and cases might be applicable.[15]The economical course, in both time and money, one would think, would be to dispose of these two new added possibilities along with the existing claim that is against Roberts Logistics, now in liquidation. There is, one is bound to note, a long delay between 21st November 2000, which would be the date when it could be expected that Miss Holmes' advisers received Roberts Logistics' IT3 and the 29th January 2001, when Miss Holmes' advisers sought, for the first time, particulars as to the expression "in voluntary liquidation" and associated matters, including the possibility of transfers. That might put difficulties in Miss Holmes' way. There is a gap of over two months. But against that, the details of the transfer of employees, such as it was, were not given by the respondent until 2nd March 2001, despite the request for particulars on 29th January 2000 and despite even the order of the 28th February 2001. There has plainly been delay on the respondent' s side as well. It is not until 3rd March 2001 when Miss Holmes' advisers could in the ordinary course be expected to have got the details that Roberts Logistics purported to supply on 2nd March, that the appellant could in any detailed way have been expected to raise a case as to transfers and dismissals in connection or related to transfers and they moved with all reasonable speed thereafter. Indeed, as I have indicated in the chronology, no doubt fearing further delay, they had applied to the Employment Tribunal to add Roberts Transports even before they got the respondent's particulars, presumably on 3rd March 2001.[16]The tribunal will need to look into whether this is simply a speculative attempt to find a respondent who is worth powder and shot or whether it is an amendment that is sought on proper grounds. What is the evidence of Roberts Transport ever having been or having been regarded as the employer? What is the evidence for a view that the transfer of employees at or after 24th September 2000, when Roberts Logistics went into voluntary liquidation, operated by way of a TUPE transfer? What is the evidence, if any, of Miss Holmes' dismissal on 4th August 2000 being in any way related to or in consequence of the transfer or of an intention to transfer in September 2000?[17]These questions are as yet unanswered. So far as one can tell, there was no enquiry into any of them before the tribunal came to its decision not to allow the joinder of Roberts Transport.[18]I have been addressed by Ms Christodoulou in relation to the well known case of Litster v Forth Dry Dock & Engineering Co Ltd [1989] IRLR 161 and the lesser known case of DJM International Ltd v Nicholas [1996] IRLR 76 . Difficult questions can arise in this area but there has been no enquiry into them by the tribunal and I think it is possible to categorise the letter refusing the joinder as the exercise of a discretion which failed to take into account that which should have been taken into account. To that extent I feel able to set aside the decision not to join Roberts Transport. The questions that I have already indicated will need to be dealt with but on the basis of evidence or, at the very least, of satisfactory instructions. It will be a matter for the tribunal to look into.[19]I think the best course is this that I should set aside the decision of 7th March 2001 by the tribunal and adjourn the question of the joinder of Roberts Transport to come on as a preliminary issue at the main hearing tomorrow.[20]Miss Holmes' advisers will need to tell the liquidator and to tell Roberts Transport that there will be tomorrow an application for the joinder of Roberts Transport as a second respondent and that they are invited to address the tribunal on the subject, whether they choose to take up the invitation is, of course, a matter for them.[21]The tribunal tomorrow, looking at that as a preliminary issue, will no doubt want to look at cases such as Litster and DJM and at the questions of fact which I have touched on but, of course, their enquiry will be fuller than I have been able to deal with matters today. They will have the benefit of a truly inter partes hearing or, at any rate, they will be a tribunal which all sides will have had the opportunity to address because the liquidator and Roberts Transport will have been given notice.[22]All I do at this stage is set aside the decision of 7th March 2001; adjourn the question of joinder to come on as a preliminary issue tomorrow; indicate that with all reasonable speed the liquidator of Roberts Logistics and Roberts Transport itself must be told that they are invited to attend tomorrow and that the issue of joinder will come up tomorrow and leave the matter entirely in the hands of the Employment Tribunal thereafter.