ARGYLL & CLYDE HEALTH BOARD v MR A FOULDS & OTHERS [2006] UKEAT 0009_06_1108

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0009_06_1108Case No Appeal No. UKEATS/0009/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
ARGYLL & CLYDE HEALTH BOARDAPPELLANTMR A FOULDS & OTHERSRESPONDENT
Before
Lady SmithDate 11 August 2006
[1]APPEARANCES For Argyll & Clyde Health Board Mr I Truscott QC (of Counsel) Instructed by: NHS Scotland Central Legal Office Anderson House Bonnington Road Edinburgh EH6 5JR For Mr A Foulds For NHS 24 & Nestor Primecare Services Limited Ms D Fisher (Solicitor) Messrs Anderson Strathern Solicitors 1 Rutland Court Edinburgh EH3 8EY No appearance or representation by or on behalf of the Respondent SUMMARY Claimant sought to add a new respondent by way of amendment, almost seven months after he was dismissed by the existing first respondents and some four months after he had lodged his claim with the tribunal. The tribunal allowed the amendment on the basis that the claimant was not adding a new claim but 'merely seeking to amend to take account of the situation in which he found himself' and it was just and equitable to allow the amendment. The new respondents appealed to the Employment Appeal Tribunal who upheld the appeal and remitted to a freshly constituted tribunal to rehear the amendment application. Observations made regarding the guidance on amendments given in Selkent Bus Co Ltd v Moore [1996] ICR 836 . THE HONOURABLE LADY SMITH Preliminaries This is an appeal by the 3 rd respondents, Argyll and Clyde Health Board, who became respondents in the claimant's claim for unfair dismissal (which failing a redundancy payment) following the allowance of an amendment that was put forward at a pre-hearing review. The decision of the Employment Tribunal, sitting at Glasgow, Chairman Mr M W J Macmillan, to allow that amendment is contained in a judgment registered on 1 December 2005. That was a decision that was reached after a hearing at which evidence was heard from the claimant and his solicitor gave an explanation to the tribunal of his involvement, without giving evidence on oath.[2]The claimant was represented by Mr McDowall, solicitor, before the tribunal and by Ms D Fisher, solicitor, before this tribunal. The appellants, who were third respondents before the tribunal, were represented by Mr A MacLeod, solicitor, before the tribunal and by Mr Truscott QC, before this tribunal. I will refer to parties as claimant and respondents. Introduction[3]The history of the claimant's claim was: - on 28 September 2004, he was dismissed by Nestor Primecare Services Ltd, the first respondents; - on 23 December 2004, a claim was lodged with the Employment Tribunal on behalf of the claimant against the first respondents and against NHS 24, as second respondents; - the second respondents lodged their response with the tribunal on 27 January 2005; - a case management discussion took place on 23 March 2005, at which the issue of whether or not an attempt would be made to include the respondents as third respondents was discussed; - an application to amend so as to include the respondents as third respondents in the claim was lodged with the tribunal on 21 April 2005; - a pre-hearing review took place on 25 November 2005 in the course of which the claimant sought to amend to include the respondents as third respondents in his claim; - the tribunal promulgated its judgment on 1 December 2005, allowing the amendment sought.[4]The numbering of the tribunal paragraphs has gone awry from paragraph 8. After that, in the print of the judgment, the numbering reverts to "7". I have treated the paragraphs after paragraph 8 as running in normal numerical sequence and refer to them accordingly. Factual Background[5]Of the facts found by the tribunal, some are clear, some are not. Into the former category falls that the claimant worked for the first respondents, assisting in the provision of emergency telephone cover for general practitioner health services for the eight year period up to 18 September 2004, when he was dismissed, that the relevant call service ceased being run by the first respondents at that time and that that call service first began being run by the second respondents on 19 October 2004. It was also found by the tribunal that the respondents "stepped in and ….provided a patched up 24/7 service" in the period 28 September to 19 October. Further, it is evident that the history of the case was as detailed above.[6]Into the latter category falls the question of the extent of Mr McDowall's knowledge (and, therefore, as a matter of law, the claimant's knowledge) of the respondents' involvement prior to the expiry of the three month post dismissal period. At paragraph 6, the tribunal state: "After 28 September, when NHS 24 was supposed to have taken over, the situation became very fluid. Mr McDowall for the claimant was to a certain extent personally involved in this process".[7]At paragraph 7, they record: "Mr McDowall told us that he did not consider it necessary , when the application to the Tribunal was lodged on 23 December 2004 to bring in Argyll and Clyde as respondents." and at paragraph 9 , they record: " (Mr McDowall) was in regular touch with the agents then acting for the first respondents, who were proposing at that point to bring in Argyll and Clyde Health Board as respondents….".[8]That must be a reference to being in regular touch at and prior to 8 February. No finding is made, however, as to when that course of communication began.[9]It does not seem possible to ascertain what the tribunal meant by referring to the situation as "fluid" or, moreover, exactly what degree of knowledge of the involvement of the respondents Mr McDowall had. Whilst the tribunal, later in the judgment, refer to him only realising that the involvement of the respondents was "an issue" after he read the second respondents' response, that is a different matter. That must be read as a reference to the point at which Mr McDowall realised that the second respondents were going to take the point, namely that they were going to adopt the position, in the claim, that they were the wrong respondents; that they were going to argue that they were not the transferees in a TUPE transfer in which the claimant had acquired rights. Judging by the quotation from the second respondents' response that is contained in paragraph 8, it was not from that document that he gained knowledge of the respondents' involvement. What the tribunal find is not the same thing as saying that Mr McDowall was ignorant of the respondents' involvement until 8 February 2005 and the references to which I have referred in paragraphs 6, 7 and 9 all seem to infer that he did have knowledge at a much earlier stage but chose not to include the respondents in the claim on the basis of his judgment being that it was not necessary to do so.[10]There is also a lack of clarity as to how it was that it was not until 8 February that the second respondents were taking the point that they were not relevant transferees. He said that he received service of it on 27 January 2005. The tribunal record that he first saw it on 8 February 2005 but the question of why he did not read it until 8 February has not been explored. The same difficulty arises when it comes to the delay between the case management discussion and the intimation of the application to amend. Whilst the tribunal accepted that there was an attempt to intimate it earlier, on 29 March, nothing is said as to the reason for the delay between 23 and 29 March nor as to why it took until 21 April for Mr McDowall to realise that intimation of the amendment application had not been achieved. Tribunal Decision[11]The reasoning of the tribunal appears to have been as follows: firstly, that s.111 of the Employment Rights Act 1996 requires a complaint of unfair dismissal to be lodged with the tribunal within three months of the date of dismissal or, if it is not reasonably practicable to do so, within a reasonable period thereafter. Secondly, that it was not reasonably practicable for Mr McDowall to "serve an action" on the respondents or to amend in order to support an application to that effect, prior to 8 February 2005, the significance of that date being that that was when he read the second respondents' response. Thirdly, that "the meter started ticking so far as time bar is concerned" (paragraph 17) when the claimant received service of the response which Mr McDowall said was on 27 January 2005. At the end of that paragraph, there is a comment regarding the intimation of the second respondents' response that:
"If it was 18 January then receipt of the communication by the Tribunal would be out of time in respect of Section 111."
[12]When that comment is taken together with the considerations of reasonable practicability that appear in paragraph 13, it seems plain that up to that point, the application has been approached as an application to which the provisions of s.111 of the Employment Rights Act 1996 apply.[13]There is then a change of tack by the tribunal. In the next paragraph, paragraph 18, it is stated:
"As we understand it , the claimant is not adding a new ground of claim, but is merely seeking to amend to take account of the situation in which he found himself. If that is the case, the normal rules apply, and we see no reason why the claimant cannot amend at this relatively early stage in the proceedings ."
[14]Then, in the last paragraph, under reference to rule 19 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Regulations"), it is said that the question of whether or not the further respondent should be added is entirely a matter for the Tribunal's discretion. It is said that it would both "just and equitable" to allow the additional respondents to be added and the application to amend was allowed. Relevant Law[15]The starting point is s.111 of the Employment Rights Act 1996 , which provides:
"Both parties to the present hearing (the claimant and the Argyll and Clyde Health Board) made substantial submissions. The relevant section of the Employment Rights Act 1996 reads as follows: '111 Complaints to Industrial tribunal (1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months"
. Account can then be taken of rule 1 of the 2004 Regulations, which provides: " Starting a claim 1(1) A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information (subject to paragraph (5) of this rule and to rule 53 (Employment Agencies Act 1973)). (2) The claim may only be presented to an Employment Tribunal Office in England and Wales if it relates to English and Welsh proceedings (defined in regulation 19(1)). The claim may only be presented to an Employment Tribunal Office in Scotland if it relates to Scottish proceedings (defined in regulation 19(2)). (3) Unless it is a claim in proceedings described in regulation 14(3), a claim which is presented on or after [1 st October 2005] must be presented on a claim form which has been prescribed by the Secretary of State in accordance with regulation 14. (4) Subject to paragraph (5) and to rule 53, the required information in relation to the claim is – (a) each claimant's name; (b) each claimant's address; (c) the name of each person against whom the claim is made ('the respondent') (d) each respondent's address; (e) details of the claim; (f) whether or not the claimant is or was an employee of the respondent; (g) whether or not the claim includes a complaint that the respondent has dismissed the claimant or has contemplated doing so; (h) whether or not the claimant has raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal Office; (i) if the claimant has not done as described in (h), why he has no done so …..".[16]Then, under and in terms of rule 10(2)(q) of the 2004 Regulations, a tribunal chairman has power to give leave to amend a claim.[17]Then, under rule 18(2)(b), at a pre–hearing review, a tribunal chairman has the power to issue any order in accordance with rule 10.[18]Rule 19, the rule referred to in the tribunal's judgment deals with notice requirements and would not appear to be of any relevance to the circumstances of the present case.[19]I would, at this point, observe that the 2004 rules make provision for amendment in a similar manner to that which is provided by the Rules of the Court of Session. Rule 24.1 of those rules provides that, in any cause, the court may, at any time before final judgment, allow: " (2)……. (d) where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person , an amendment inserting ……an additional or substitute party……" .[20]In both cases, a wide discretion as to whether to allow the amendment is conferred by the rules. It is within the discretion of the court to allow such an amendment even if time bar questions are liable to arise because of late service on the new defender, such questions being a matter of substantive law and not covered by the rules of court. It is though unlikely that the court will be persuaded to do so if it is plain from the pursuer's case that he will have no answer to the time bar point. It may not be plain though; the case may, for instance, require consideration of whether the provisions of sections 17 or 19A of the Prescription and Limitation (Scotland) Act 1973 apply, a matter in respect of which there will often require to be a preliminary proof.[21]Similarly, it is, according to the 2004 regulations, within the discretion of the tribunal to allow an amendment to introduce a new respondent at any time. The difference is, though, that there can never be any possibility of the new respondent subsequently establishing that the claim against him is in fact time barred. It seems from s.111 of the Employment Rights Act 1996 that all that the claimant has to have done to be in time is to present a claim against any respondent to the tribunal within the stated three month period or, if not reasonably practicable to have done so, within a period of three months thereafter.[22]It is, it seems to me, against that background that the guidance provided in the case of the Selkent Bus Co Ltd v Moore 1996 ICR 836 , requires to be read. At p.843, Mummery J, as he then was, said: "(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment . Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits . If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.(c) The timing and manner of the application . An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision".[23]The reference there to what must be considered if a new complaint or cause of action is proposed to be added must, in my view, be read as meaning that when such an amendment is being considered, the tribunal should take into account, when exercising its rule 10(2)(q) discretion, the fact that it is being proposed outwith the s.111 period (if that is the case) as being a highly relevant factor. It is not suggested that there is an absolute rule that an amendment for such a purpose could never be allowed beyond that period but it is, it seems, indicative of the view being that a tribunal ought to afford considerable weight to its lateness in the discretionary exercise that it has to carry out. Quite apart from anything else, it should be recognised that once leave is granted, the new respondent cannot argue that the claim against him is time barred since the claimant has the benefit of one single start date for s.111 purposes, namely the date that his claim against was lodged with the tribunal, even although it was not directed against the new respondent at that point.[24]Thus read, the guidance is consonant with what was said in the case of Cocking v Sandhurst (Stationers) Ltd & Another [1974] ICR 650 , a case where an employee had originally named a subsidiary company as his employer in circumstances when he was in fact employed by the parent company and, at p.656, Sir John Donaldson, as he then was, said:
"…In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be , to be claimed against. (7) In deciding whether or not exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused."
[25]In the case of Gillick v BP Chemicals [1992] IRLR 437, which was relied on by the claimant in the present case, the Employment Appeal Tribunal observed that there was no time limit as such when what was proposed was the addition of a new or substitute respondent to a timeously lodged claim. At paragraph 8, they commented:
" The question of whether or not an amendment should or should not be allowed becomes, as the appellant submitted, one of the exercise of discretion in the whole circumstances of the case ."
[26]They accepted that the guidance given in Cocking was appropriate and ought to be followed but did not take the view that it was limited to cases where the original and new respondents were related as principal and subsidiary or in some similar way. They said, at paragraph 7:
" The presence of absence of a connection between the respondents may well be relevant in considering whether or not a genuine mistake has been made , and whether the Industrial Tribunal should exercise its discretion to allow the mistake to be corrected, but such considerations are relevant, if at all, as matters to be taken into account in exercising the discretion, rather than as limitations on the circumstances in which the discretion can be exercised."
[27]In short, whilst it is implicit in what was said by the Employment Appeal Tribunal in Gillick that it will be incumbent upon the claimant to provide a persuasive explanation for the lateness of the addition of a party as a new respondent, the tribunal does have a discretion to allow the amendment even although the result would be to add a new respondent beyond the end of the period which the statute provides (now s.111 of the Employment Rights Act 1996 ) for the lodging of the original claim. It is also of note that, although they appear to have had some sympathy for the view that the fact that the proposed new respondent is not connected with the original respondent does not rule out amendment, they appear to have in mind the granting of leave to add an unconnected respondent in a case where there has been a genuine mistake, not a change of mind on the part of the claimant or his advisers as to whether or not the new respondent requires to be brought in. That is not to say that they are to be read as ruling out the granting of leave to amend in such a case – to do so would run counter to their determination that the tribunal has a discretion in the matter - but it seems reasonable to infer that they anticipate it being much less likely that the discretion will be exercised in the claimant's favour if that is what has happened. That is certainly what this tribunal would anticipate.[28]The above analysis would also seem to be in line with that of the Employment Appeal Tribunal ( HHJ Peter Clark), in the case of Lehman Brothers Ltd v Mr J Smith [2005], Employment Appeal Tribunal 13.10.2005 where, at paragraph 21, under reference to the case of Cocking , said:
" …the NIRC set out a seven step approach to follow when considering applications to change the basis of claim or adding or substituting parties (656H – 657C). In particular, at steps (3) and (4) it was made clear that if the new claim sought to be advanced was out of time at the date of the original application there was no discretion in the Employment Tribunal to allow the amendment. However, if it was then in time the Tribunal has a discretion to allow the amendment. In exercising that discretion, the tribunal should in every case have regard to all the circumstances of the case and in particular any injustice or hardship which may caused to any of the parties."
Submissions on Appeal[29]Mr Truscott relied on a passage in Harvey in Industrial Relations and Employment Law, Division T at paragraph 311.03:
"A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all."
[30]The claimant's application to amend fell within the third category. The tribunal had erred in not so holding. It should have treated the categorisation of the application as the first issue to be determined, examined the claim and the proposed amendment, considered the terms of rule 1 of the 2004 Regulations, identified the salient points and set out the reasons for determining which category the claim fell into. What, however, had happened was that the tribunal had narrated the evidence and submissions and law for seventeen paragraphs and then decided that this was not a new claim.[31]Under reference to the Selkent Bus Company case, it was submitted that whilst the circumstances to be taken into account might vary according to the case, there were certain matters that ought always to be considered, particularly the question of whether hardship or injustice would be caused to the respondent and that of the absence or presence of hardship to the claimant if it his amendment were not allowed. The tribunal had failed to look at these factors. Its reasoning was deficient.[32]The circumstances here were, it was said, that the claimant had had legal advice from the date of commencement of his claimant. He and his solicitor knew that the transfer had not gone ahead as planned. Insofar as there may have been a failure to investigate, Mr Truscott relied on the case of Palmer & Another v Southend-on-Sea Borough Council [1984] 1 AER 945. The tribunal had been wrong to regard time as starting to run only from 8 February. The whole pace of the claimant's solicitor's response was too slow. It had not been shown that he had taken all steps that should have reasonably been taken to ensure that the claim was timeously presented: Capital Foods Retail Ltd [1993] IRLR 430 and Camden & Islington Community Services NHS Trust v Kennedy [1996] IRLR 381.[33]Further, it was submitted that the tribunal had been wrong to approach matters, as in paragraph 19 they did, as though the 2004 Regulations had the effect of overturning the relevant statutory provisions.[34]In any event, paragraph 14 showed that the tribunal had mistakenly thought that the respondents might be part of the same establishment or service as the second respondents.[35]In conclusion, Mr Truscott observed that whilst this tribunal would naturally be concerned that the claimant should not be prevented from pursuing a valid claim, there might be an issue between him and his solicitors and it might also be that because the arrangement before the second respondents took over was temporary, there was no need to have the respondents in the case in any event: Rygaard v Stro Molle Akustik ASC - 48/94 [1996] IRLR 51 ECJ. He moved that the appeal be allowed and the case remitted to a freshly constituted tribunal to consider the application of new. Claimant's Submissions on Appeal[36]It was submitted on behalf of the claimant that the tribunal had not erred. They had correctly assessed the application as being in respect of a category (ii) amendment, to use the Harvey classifications. They addressed all matters required as set out in the case of Cocking . Ms Fisher referred to paragraph 322 of Harvey where reference is made to the possibility of a claimant being allowed to add a new respondent in circumstances where he had been unsure of the identity of his employer and the respondent sought to be admitted was a company related to the existing respondent. She also relied on Gillick .[37]Ms Fisher submitted that the tribunal had been correct to find that it would not have been reasonably practicable to seek to amend to include the respondents until 8 February. She later, however, submitted that questions of reasonable practicability were not relevant. She also, at one point submitted that the claimant's claim would remain the same after amendment – it was still a claim against his employer that he had been unfairly dismissed but did not wholly insist on that submission.[38]Overall, this was, she submitted, a permissible decision. There had been on fault on the part of Mr McDowall and the application for leave to amend was submitted within a reasonable time. The appeal should be refused. Discussion and Conclusion[39]The task for the tribunal was to decide whether it should exercise the discretion conferred by rule 10(2)(q) of the 2004 Regulations and allow the claimant leave to amend his claim so as to include the respondents as third respondents. It was incumbent upon them, when doing so, to consider the whole surrounding facts and circumstances. In so doing, they required to assess whether the claimant was seeking to alter the basis of an existing claim against an existing respondent without purporting to raise a new distinct head of complaint, as may happen if a claimant seeks to add more "flesh" to the "bare bones" of the case set out in his originating application. It will not usually be difficult for a tribunal to be satisfied that it is appropriate to grant leave in such circumstances. It required, if the application did not fall into that category, to assess whether the claimant was seeking to substitute a new cause of action but one which is linked to or arises out of the same facts as the original claim, as could happen if, for instance, a claimant sought to substitute a case of unfair constructive dismissal for a case of unfair dismissal. If the application did not fall into that category, it required to consider whether it was an amendment which sought to substitute a wholly new claim or cause of action which was not connected to the original claim at all.[40]The tribunal then, having carried out the above assessment, required to look at the whole facts and circumstances surrounding the lateness of the application. In the event that the application fell properly to be regarded as a new complaint or cause of action , that ought to have been borne in mind since it would be eminently open to the tribunal to regard it as an important factor weighing against grant if it was being presented outwith the time limits in s.111. If it was being presented outwith that time limit the tribunal need to look at the explanation given for that having occurred: Why were the respondents not included in the original claim? What was known by the claimant and/or his solicitor about their potential as relevant respondents at that time? What should have been known? When did the claimant and/or his solicitor realise that the respondents ought to be included? What steps were taken after that? What was the reason for any delay thereafter? Did the claimant and/or his solicitor take prompt action once the need to seek to include the respondents was realised or not? If not, why not? Would there be injustice or hardship to the claimant if the application were refused? If so, of what nature? What would be its cause? Would there be injustice or hardship to the respondents in being brought in as respondents at this stage?[41]Having considered these matters, the tribunal then required to ask itself whether it was satisfied that it ought to exercise the rule 10 discretion available to it.[42]I am, however, satisfied that this tribunal has erred. It seems to have begun by considering whether the application for leave to amend was being presented within the s.111 time limits. It noted that it was not presented within the three month limit but found that it would not have been reasonably practicable to do so until 8 February. That finding, however, seems to proceed on the erroneous basis to which I have already referred, namely that it was not until then that Mr McDowall realised that the respondents had any involvement whereas it appears from their earlier findings that that is not the case. The realisation referred to seems in fact to be a realisation that he needed to include as respondents a party of whose involvement he had had prior knowledge – knowledge gained early enough to have included the respondents at the outset.[43]The tribunal then seem to approach matters on the basis that a further s.111 three month time limit came into play as from the date when Mr McDowall received intimation of the second respondents' response. That is simply wrong. There was only ever one relevant three month time limit under s.111, the three months that ran as from the date of the claimant's dismissal on 28 September 2004.[44]Finally, the tribunal seem to put to one side an approach that involved looking for justification for lateness of a new claim and, at paragraph 18, found that the claimant was not adding a new ground of claim. I do not agree. It is quite plain, in my view, that what the claimant is seeking to do is to bring in a new respondent who is separate and distinct from the existing respondents. The claim that he seeks to make against them is not that they were his employers and they dismissed him unfairly but that TUPE applies so as to make them fall heir to his claim for the first respondents having unfairly dismissed him. It is a claim which, clearly in my view, falls within the third of the three categories discussed in Harvey and in the Selkent Bus Company case. It may be that the key to the tribunal's error is to be found in the first sentence of paragraph 19 where, having indicated that they do not regard the claimant as seeking to add a new ground of claim, they state:
"If this is not the case then the normal time limits would apply."
But that is not correct. If the claimant was seeking to add a new ground of claim, the question of whether or not to allow the amendment was still a matter of the exercise of their discretion. The tribunal misapprehended, to use its own language, the position in which it found itself.[45]In all the circumstances, I am satisfied that the tribunal's decision was the result of error of law and that the appeal should be allowed.[46]I turn briefly to one other matter. In paragraph 14, the tribunal found that the respondents were part of the same establishment or service and were thus associates of the second respondents in terms of s.231 of the Employment Rights Act 1996 . That is plainly wrong. Section 231 provides:
"For the purposes of this Act any two employers shall be treated as associated if- (a) one is a company of which the other (directly or indirectly) has control , or (b) both are companies of which a third person (directly or indirectly) has control ;"
[47]The respondents are not a company and s.231 has no application to them. In fairness to the tribunal, whilst toying with the idea that service on the second respondents might, on account of its (erroneous) view of s.231, be considered effective service on the respondents as well, it did not decide the case on that basis. However, it presents as another indication of the tribunal's whole approach to the case having been on an erroneous basis and serves to reinforce the view that the appeal ought to be allowed. Disposal[48]I will pronounce an order allowing the appeal and remitting the case to a freshly constituted tribunal for a rehearing.