MR D T DOWLING v 1) HSF LOGISTICS 2) MR M ROSE [2002] UKEAT 1404_00_1103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1404_00_1103Case No Appeal No. EAT/1404/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D T DOWLINGAPPELLANT1) HSF LOGISTICS 2) MR M ROSERESPONDENT
Before
Mr Justice Holland Mr P M Smith Miss S M WilsonDate 11 March 2002
[1]APPEARANCES For the Appellant MR COLIN CHAPMAN Solicitor Messrs Barnes Marsland Solicitors 51 Hawley Square Margate Kent CT9 1NY For the Respondents THE SECOND RESPONDENT BEING NEITHER PRESENT NOR REPRESENTED MR JUSTICE HOLLAND This is an appeal from a decision of Mr Zuke a Chairman of an Employment Tribunal sitting at Ashford, which decision was communicated by a letter of 5 October 2000.[2]The matter arises in the following circumstances. The Applicant, Mr Dowling is an HGV driver concerned with work on the continent. By way of an ET1 of 6 April 2000 he complained of unfair dismissal and named his employers as HSF Logistics, a Dutch company.[3]On 7 June 2000 the Employment Tribunal enquired as whether these employers had a UK place of business so as to be able to accept service. Mr Dowling replied identifying Mr Mark Rose of Southcroft Business Services, Frome, Somerset as the UK agent of HSF Logistics.[4]Thereafter solicitors acting for respectively Mr Dowling and Mr Rose made investigations and entered into correspondence. The upshot was a letter of 14 September 2000 from Mr Dowling's Solicitors to the Employment Tribunal at Ashford including the following paragraph:
"We therefore seek on his behalf leave to add M Rose sometimes trading as Southcroft Business Service/Agents and sometimes trading as Rose Refrigerated Transport and Agents as a second Respondent although clearly the 3 month time limit has long since passed. We would then ask the Tribunal to list as a preliminary point the question of who was our client's employer. If then the Tribunal decides as we now believe that it was not HSF Logistics then that firm need be troubled no further albeit as we understand it they have no place of business in this country and consequently service upon them cannot be affected in any event." "
Thank you for your letter dated 14 September 2000 which was placed before a Chairman of the Tribunals, Mr Zuke, who has directed me to write as follows:- "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."" the Notice of Appeal and it is in these terms:
"The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that: 1) The Appellant had an arguable case that Mr Rose was his employer and the application should have been listed for hearing and not summarily dismissed. 2) In view of the complexities of the relationship between the Appellant, H.S.F. Logistics and Mr Rose the application should not have been refused without a close determination of all the circumstances."
[7]That appeal came before this Tribunal on 15 December 2000 for the purposes of a preliminary hearing. In the event this Tribunal ordered an inter partes hearing and on the course of his judgment Bell J said as follows:
"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 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."
[8]For our part we have had full opportunity to read all the material in this case such including that which bears upon Mr Dowling's employment so far as it has been ascertained by the investigations carried out thus far. It is entirely plain to us that there is no real answer to this appeal in particular no real answer to the point made in the last sentence of the citation from the judgment of 15 December 2000. This is manifestly a case in which the issues ought to have been before the Chairman with the benefit of oral evidence and submissions, notice having been given to Mr Rose.[9]In those circumstances without adding further to this judgment we unhesitatingly allow this appeal. We direct that the matter be remitted for hearing by a different Chairman at Ashford who will no doubt give directions so as to meet the problems that have so far arisen and thus to be able to give a decision on the merits with respect to the issues that are plainly raised with respect to Mr Dowling's employment.