MR M WALKER & MRS R WALKER T/A WALKER'S SCHOOL OF MOTORING v MRS J MILLS [2002] UKEAT 561_01_2905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 561_01_2905Case No Appeal No. EAT/561/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M WALKER & MRS R WALKER T/A WALKER'S SCHOOL OF MOTORINGAPPELLANTMRS J MILLSRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR A E R MANNERSMS B SWITZERDate 29 May 2002
[1]APPEARANCES For the Appellant MRS R WALKER (the Appellant in Person) For the Respondent MR M JONES (friend on behalf of the Appellant) MISS RECORDER SLADE QC This is an appeal by Mr and Mrs Walker against the decision of an Employment Tribunal which refused their application to enter a Notice of Appearance to an Originating Application brought by a Mrs Mills. The Employment Tribunal proceeded to hold that Mrs Mills had been unfairly dismissed and made an order for the payment of compensation by the Walkers trading as Walker's School of Motoring.[2]Mrs Walker, who has appeared in person for herself and her husband, urges on us that that the Originating Application named as a Respondent the manager of their business, a Mr Pearce. It was not until the hearing before the Employment Tribunal on 19 February 2001, which she says that she attended as a witness for Mr Pearce, that Mr and Mrs Walker were substituted as Respondents to Mrs Mills' claim. She complains that she and her husband were not given an opportunity to serve a Notice of Appearance or resist the claim brought by Mrs Mills.[3]Mr and Mrs Walker are the proprietors of Walker's School of Motoring, a driving school, which employed Mrs Mills as a telephonist/receptionist from 3 April 1998 until her dismissal on 19 June 2000. It appears that Mr and Mrs Walker are not in attendance at the driving school throughout the year but pay visits during the year.[4]The Employment Tribunal, in paragraph 7 of its decision, recorded that Mrs Walker, who had appeared at the Tribunal prepared to be a witness for Mr Pearce, the Manager at the School of Motoring, had no objection to Mr and Mrs Walker being substituted as Respondents to Mrs Mills' Originating Application and the Tribunal therefore ordered that the substitution be made.[5]In paragraph 8 of the Tribunal's decision it held:
"Having done that, we were faced with the situation that Mrs Mills had been dismissed, and the Respondents had not entered a Notice of Appearance putting forward any reason for dismissal. Since they have not discharged the burden, placed on them by section 98(1) of the Employments Rights Act 1996, of showing the reason for dismissal, it follows that the dismissal is automatically unfair."
[6]It appears that an application had been made to the Employment Tribunal on the date of the hearing, both by Mrs Walker and by Mr Pearce, for leave to enter a late Notice of Appearance, no Notice of Appearance having been entered.[7]So far as the reason why no Notice of Appearance had been entered by Mr Pearce, it appears from paragraph 3 of the decision, that the Notice of Appearance had been overlooked. That explanation in the Tribunal's decision is also attributed to Mrs Walker but Mrs Walker had not been named as a Respondent to the proceedings at that time.[8]We will briefly turn to the Originating Application itself. In box 5 of the Originating Application, the name of the employer is given as Mr A J Pearce, the address is given as Walker's School of Motoring with an address. The Employment Tribunal clearly did not construe this Originating Application as naming Walker's School of Motoring as the Respondent. Had they done so, there would have been no need for making the order, which they did make, for the substitution of Mr and Mrs Walker for Mr Pearce as the Respondent.[9]So we have to treat the Tribunal's decision as a decision that initially the Originating Application had been against Mr Pearce alone and an order for substitution of Mr and Mrs Walker for Mr Pearce as the Respondent to the Originating Application. The Employment Tribunal then, as we have said, refused Mr and Mrs Walker permission to enter a late Notice of Appearance.[10]The conduct of these proceedings has caused us, and no doubt Mrs Mills, some concern. The Employment Tribunal was clearly of the view that the Walkers were plainly aware of the proceedings, as evidenced by Mrs Walker appearing at the listed hearing date, albeit as a witness. However, in our view, the Employment Tribunal erred in law in not permitting the substitute Respondents to enter a Notice of Appearance.[11]In the papers before us there is a letter from the Employment Tribunal to this Employment Appeal Tribunal dated 14 June 2001, responding to an enquiry as to whether the Originating Application had been served on Mr and Mrs Walker. In numbered paragraph 3 of the letter the writer, who is writing on behalf of the Regional Secretary of the Tribunals in Ashford, states:
"The Chairman, Mr D de Saxe, directs me to say that no copy of the IT1 was sent to Mr and Mrs Walker, nor was any Notice of Hearing. But Mrs Walker was present at the Tribunal and was assisting Mr Pearce, the manager of the business owned by her husband and herself, with the case. She had access to the documents in the Tribunal, and, the letters inferred, previously."
[12]So, it is plain that the Originating Application, whilst served on the manager of the business, Mr Pearce, was not served on Mr and Mrs Walker.

(a) Send a copy of it to the Respondent"

[13]And then in accordance with Rule 3(1): (1) "A Respondent shall, within 21 days of receiving the copy of the Originating Application, enter an appearance to the proceedings…"[14]It is apparent that those steps were not undertaken in relation to the substituted Respondents, Mr and Mrs Walker. Accordingly, for these reasons, this appeal must be allowed. The rules of the Employment Tribunal must be complied with in that there should be service of the Originating Application on Mr and Mrs Walker and they should have the opportunity to serve a Notice of Appearance. Then the matter is remitted for hearing before an Employment Tribunal if possible, but not necessarily, the same Employment Tribunal that heard Mrs Mills' case initially.[15]We say nothing at all with regard to the merits of the Originating Application, or indeed as to the merits of the any grounds of resistance to the Originating Application. Those will be matters for the Employment Tribunal on the remitted hearing. We indicated to Mr Jones, a friend that has appeared for Mrs Mills and has given us great assistance. We will not reinstate Mr Pearce as a Respondent as he, like Mrs Mills, was an employee of Mr and Mrs Walker and he was not Mrs Mills' employer.