Appeal No. UKEAT/0345/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 November 2008

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

MR J RYAN	APPELLANT

BENNINGTON TRAINING SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J RYAN
(The Appellant in Person)
	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
PRACTICE AND PROCEDURE: Service

This is an appeal from the judgment of 21 January 2008 of Employment Judge Davey, who decided that the amended claim form, which now named Bennington Training Services as Respondent, was out of time and that it was reasonably practicable for Mr Ryan to have brought the claim within time.  

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is an appeal from the judgment of Employment Judge Davey sitting at Southampton on 21 January 2008.  The judgment was sent to the parties and entered in the register on 5 June 2008.  In his judgment Judge Davey decided that the amended claim form, which now named Bennington Training Services as Respondent, was out of time and that it was reasonably practicable for Mr Ryan to have brought the claim within time.  At the hearing before the Judge, Mr Ryan appeared in person and Bennington Training Services Ltd was represented by Mr K Hayward, who was a Director.

2.	This morning there are two matters I have to decide.  The first is Mr Ryan’s application to adduce fresh evidence and the second is the substantive appeal.  This morning Mr Ryan has appeared in person.  Bennington Training Services Ltd, the Respondent, have notified the Employment Appeal Tribunal, by a letter from Mr Hayward, that they do not intend to appear this morning and rely upon the reasons given by Judge Davey in his judgment.

3.	I turn to the notice to adduce fresh evidence.  As I have just explained to Mr Ryan, it is not, in fact, necessary for him to pursue this application, the principle reason being that in the absence of that fresh evidence I propose to allow the appeal, in any event.  He therefore sensibly did not press the application.  I turn to the appeal itself.

The material facts
4.	The material facts are set out in the Judge’s judgment at paragraphs 1 to 7:
“1.  In this case the Claimant, Mr Ryan was employed from 5 December 2005 until 2 March 2007 and that is the effective date of termination of his employment.  He launched his application in the Tribunal on 23 May 2007 with a Respondent named as Studyxpress.
2.  There was a hearing on 30 October 2007 when a judgment was made to the effect that Studyxpress Ltd was not the employer and that company was dismissed from the proceedings, with Bennington Training Services Ltd being substituted as Respondent but without prejudice to any application that the company may wish to make as to the date of the company being joined into these proceedings.
3.  Bennington Training Services now make an application to the Tribunal that the claim made by Mr Ryan is out of time.  In determining when the claim was actually lodged, it is right to say that it is the date of promulgation of the judgment made on 30 October, that is to say, 2 November 2007.
4.  The claims made by the Claimant arise in respect of unfair dismissal, the claim for unlawful deduction from wages, the claim for breach of contract and a claim which appears in his Schedule of Loss for holiday pay under the Working Time Regulations.  The jurisdiction of the Tribunal is limited from a time point of view by exactly the same terms in each case, being those set out in the case of unfair dismissal at section 111 of the Employment Rights Act 1996, unlawful deduction from wages at section 23 of the Act, contract in the Employment Tribunals Act 1996 and the holiday pay in the Working Time Regulations themselves.  The requirement is that the proceedings in respect of unfair dismissal, breach of contract and holiday pay must be brought within three months of the effective date of termination of employment, and, in the case of unlawful deduction from wages, within three months of the deduction being made.  Clearly, the substitution of Bennington Training Services Ltd as a Respondent having taken place on 2 November 2007, with the effective date of termination being 2 March 2007, the Claimant is substantially out of time.  However, all of the time provisions allow that if the Claimant can satisfy the Tribunal that it was not reasonably practicable to extend his claim within the time limit, then the Tribunal has power to extend time, provided the claim is brought within a reasonable period.
5.  The background in this case is modestly complicated and there is no doubt from the documentation that has been presented by the Claimant in the bundle C1 and in his evidence, that he was employed on 5 December 2005 by Bennington Training Services Ltd.  The bundle contains an offer of employment from that company dated 28 November 2005 with an endorsement to the effect that Mr Ryan accepts those terms.  There is then a series of documents, all of which bear the name of Bennington Training Services Ltd., dealing with a number of matters through until January 2007 when the issue of redundancy comes to the fore.  At page 17 of the bundle C1 is a letter from Mr Heywood to the Claimant about proposed redundancy, again on Bennington Training Services Ltd letterhead.
6.  The problem appears to arise from the fact that in April 2006 shares in Bennington Training Services Ltd were brought by SX Group Ltd and Directors of that group became Directors of Bennington Training Services Ltd.  It was, in effect, a takeover by purchase of shares but the employing company remained the same, only the shareholders and some of the Directors had changed.  It is clear from the correspondence that until January 2007 there really was no reason for Mr Ryan to be under any illusion that his employer was other than Bennington Training Services, and, indeed, as the correspondence progresses into February 2007, that continues to be the case.  Because of a series of appeals and grievances, the Respondent company had to strike around amongst its available Directors to find additional people to carry out the procedures through which the Claimant was requiring that the company passed, and it is at this juncture and in particular on 26 February 2007 that we see a letter from Mr Whiting on Studyxpress letterhead paper and at the foot he describes himself as the Chief Executive Owner of Sussex Group Ltd, which was, of course, the company which was the owner of all of the shares in the Respondent company.
7.  There follows a series of letters on Studyxpress Group letterhead paper, sometimes with the writer describing himself as a Director of Bennington Training Services Ltd but not on every occasion.  It is this which caused confusion to Mr Ryan, who took the view that because of the interposition of Directors using Studyxpress Group letterhead paper, that Studyxpress were now his employer.  That, it has to be said, runs counter to the payslips which have been produced in the bundle R1, which consistently show the payer as Bennington Training Services Ltd through page 76 of that bundle to 31 December 2006 and 31 January 2007.”

5.	I pause there to say that although I have headed this section of my judgment as “the material facts”, I have quoted directly from the reasons given by the Judge.  The issue in this case, of course, is whether the Judge was right to say that the claim was effectively lodged against Bennington Training Services Ltd on 2 November 2007, that is, the date of when the judgment of another Employment Judge, Mr Peters, issued on 30 October 2007, was promulgated.  It is that assertion by Judge Davey that Mr Ryan challenges in this appeal.

6.	The Judge goes on in paragraphs 8, 9 and 10 of his judgment to give his reasons for striking out Mr Ryan’s claim:
“8.  The Tribunal has to decide whether Mr Ryan acted reasonably in issuing proceedings against Studyxpress and whether the delay caused by issuing against the wrong Respondent means that it was not reasonably practicable for him to have issued against the correct Respondent.  In that regard, all of the documentation through until the final appeal procedure in respect of redundancy is in the name of the Respondent company and there is nothing other than a memorandum which was circulated to staff, intended to explain the change of share holding, which ought to have led Mr Ryan to believe that his employer was other than Bennington Training Services Ltd.
9.  I have read the subsequent documentation with care and it is clear that in the context of the documentation, Mr Lee and Mr Whiting, who used the Studyxpress letterhead paper, were clearly acting in their capacity as Directors of Bennington Training Services Ltd and I also find that a reasonable employee would have understood that to be the case.  I do not therefore see why Mr Ryan chose to issue against Studyxpress, other than the fact he wished in some way, and this is also confirmed by the documentation, to illustrate there was something unfair in the involvement of Studyxpress in these proceedings.
10.  If I am wrong in this regard then I would refer to a letter of 28 June 2007 written by Mr Heywood, and it is at pages 76-78 of the bundle C1, admittedly after the proceedings had been issued, in which he clearly states in the fourth paragraph: ‘You have always been employed by Bennington Trading Services Ltd’.  It must be the case that, in the light of that letter, a prudent Claimant would have contacted the Tribunal office with a view to adding Bennington Training Services Ltd as an additional Respondent in order to safeguard his position.  I make allowance for the fact that Mr Ryan was not represented and appears not to have taken professional advice but even in those circumstances I have to determine what is reasonable in the circumstances and I do not accept that Mr Ryan’s conduct has been reasonable in that regard.  I am therefore finding that it was reasonably practicable to bring proceedings against Bennington Training Services Ltd within the three months prescribed by statute and therefore the Tribunal has no jurisdiction and Mr Ryan’s claims are dismissed.”

7.	The notice of appeal appears in the appeal bundle at pages 5 to 6 and has been supplemented by Mr Ryan’s very helpful Skeleton Argument.

Decision
8.	It was not necessary for me to call upon Mr Ryan to argue his appeal because, in my judgment, it is quite clear that reading the judgment, which I have just done, the Judge fell into error in two material respects.  First, the Judge was wrong in paragraphs 3 and 4 of his judgment when he asserted that in determining when the claim was actually launched against Bennington Training Services it was the date of the promulgation of the judgment made on 30 October, that is to say, 2 November 2007.  That judgment appears in the appeal bundle at page 27.

9.	On 30 October, a different Employment Judge, Mr R Peters, decided that Mr Ryan was not employed by Studyxpress and Studyxpress were therefore dismissed from the proceedings.  However, he substituted Bennington Training Services Ltd as Respondent with the caveat that:
“Without prejudice to any application that company may wish to make, is the date of the company being joined into these proceedings.”

10.	It seems to me this is where the origin of the error in Judge Davey’s  judgment arises.  I accept that the Judge did not, on 21 January 2008, have legal assistance, because, as I have indicated, Mr Ryan represented himself, and Bennington Training Services Ltd were represented by Mr Hayward, but he has to apply the law.  The Judge did not have his attention drawn to the series of authorities beginning with Cocking v Sandhurst Stationers Ltd and another [1974] ICR 650.  That was a decision of the National Industrial Relations Court, the precursor of the Employment Appeal Tribunal.

11.	The then President, Sir John Donaldson, sitting with lay members, gave a judgment which makes it crystal clear that at a hearing before an Employment Tribunal, an application for leave to substitute a fresh Respondent relates back to the date of the original application.  In that case, the Appellant employee applied for leave to amend the first application by substituting the name of the parent company.  The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended application would be allowed but would bear the date of the amendment and would accordingly be out of time.  They were satisfied that it would have been reasonably practicable for the second complaint to have been presented in time and both complaints were dismissed.  In other words, in a case very similar on the facts to the present case, the National Industrial Relations Court allowed the appeal and remitted both complaints back to the Tribunal and held that, providing the complaint was free from all defects, the Industrial Tribunal’s Industrial Relations Regulations, as they then were, gave Tribunals the power to add a Respondent or Respondents or substitute one Respondent for another and set out a series of tests as to how an Employment Tribunal should exercise its discretion.  (See the judgment of Sir John Donaldson at page 656H through to 657D.  It is not necessary for me to set those out in this judgment.)

12.	That case has been followed in a number of other cases which are conveniently set out in Harvey on Industrial Relations and Employment Law, volume 5 at paragraphs 314 to 339.  Applying that case law to the facts of this case, it is clear that the Respondent, Bennington Training Services Ltd, was added by the Employment Judge, Mr Peters, on 30 October 2007 in substitution for Studyxpress Ltd, against whom the proceedings were dismissed.  Both parties were present at the hearing, again, Mr Ryan representing himself and Mr Hayward representing Studyxpress.  I have no doubt that the criteria, which are set out in Cocking, were applied.  Clearly, Mr Peters had no difficulty, on the facts of the case, in substituting Bennington Training Services Ltd as Respondent for Studyxpress.  The legal effect of the substitution of Bennington Training Services Ltd is to put them in the place of Studyxpress.  The proceedings relate back to the date when the original claim form was submitted on 23 May 2007.  There is no dispute that that claim form was in time, it being brought within the relevant three-month period for all of Mr Ryan’s claims.  There is therefore a valid claim brought within time against Bennington Training Services Ltd.

13.	I turn to the second error of the law by the Employment Judge, which is the issue of reasonable practicability.  As he makes it clear in paragraphs 8 to 10 of his judgment, he separately considered the question of reasonable practicability and found against Mr Ryan on the facts.  The question of reasonable practicability under section 111(2)(b) of the Employment Rights Act 1996 is irrelevant to the issue the Chairman had to decide. (See British Newspaper Printing Corporation (Northcoast) Ltd v Kelly [1989] IRL 222.)

Conclusion
14.	In my judgment, there was a straightforward error of law by Judge Davey, which does not require reconsideration of the issue by him or another (Judge) sitting alone.  I will therefore substitute my decision for that of the Employment Judge.  For these reasons the appeal is allowed and the case is remitted back to the Southampton Employment Tribunal for it to proceed to a full hearing on the merits of the Appellant’s claim against Bennington Training Services Ltd.