Appeal No. EAT/990/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J D DALY

	MR T C THOMAS CBE

INPHOLINK LTD	APPELLANT

MR B DAWSON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B PATEL
(Representative)
Free Representation Unit

For the Respondents	MR J D MILLNE
(Managing Director)

	JUDGE HULL QC:	In this case Mr Dawson was employed by Inpholink Ltd as a television sales technician.  He is a man who is now aged 59.  Unfortunately, since about 1965 he has been suffering from some sort of recurrent illness.  From 20 May 1985 he was employed as a TV sales technician and during the period of his employment, which ended on 16 October 1992, he was three times, it appears, away ill through a psychological illness which was successfully treated and there came a time from 13 to 15 October 1992 when he was off work with influenza.  

	On the 16th he was preparing to go back to work and he received a letter dismissing him which is page 19 of our bundle.  That is a letter from Mr Millne who is a director, apparently, of the firm called Inpholink Ltd, the limited liability company, and he, signing as director on writing paper which says "Invision, The Home Electronics Division of Inpholink Limited" wrote to Mr Dawson:

		"It has been evident for some considerable time that you have been unable to carry out your duties.  An attempt at re-deploying you into less demanding engineering duties has not been successful.

		Accordingly, I regret to advise you that your employment with the Company is terminated in accordance with the terms of your Contract of Employment".

	It then went on about the general economic climate and thanked Mr Dawson for his seven years' service, saying that they valued his friendship.

	Mr Dawson felt, not surprisingly, that he had been in the circumstances unfairly dismissed and he launched an application to the Industrial Tribunal.  That application is to be found at page 17 of our bundle.  It is a complaint of unfair dismissal and in it Mr Dawson claims compensation for the unfair dismissal.  The name of the Respondent in the form is given at paragraph 4:  Mr D. Millne; address: Inpholink, 38 Front Street West, Bedlington, Northumberland.  It is quite clear who the Respondent is, named in that application.  It is Mr D. Millne, the gentleman who signed the letter apparently, and who appears before us today.

	One has to look and see what the provisions are for service of proceedings in the Industrial Tribunal.  In fact, it is not called service and it may be wrong technically to refer to it as service.  The position is that the rules provide that applications are to be sent by post, in general by ordinary post, to the person to whom they are directed, and under Rule 1 of the Industrial Tribunals (Rules of Procedure) Regulations 1985, which were the rules in operation at the material time, it is provided that Originating Applications shall be dealt with as follows:

		"1(1)  Proceedings for the determination of any matter by a tribunal shall be instituted by the applicant ..... presenting to the Secretary of the Tribunals an originating application, which shall be in writing and shall set out:-

			(a)  the name and address of the applicant; and

			(b)  the names and addresses of the person or persons against whom relief is sought ....".  

	The name is Mr Millne and the address is Inpholink, 38 Front Street West.  That was the originating application, on the face of it regular.  Then Rule 2 provides for the action to be taken on receipt of the application:  

		"2.  Upon receiving an originating application the Secretary of the Tribunals shall enter particulars of it in the Register and shall forthwith send a copy of it to the respondent and inform the parties in writing of the case number of the originating application entered in the Register .... and of the address to which notices and other communications to the Secretary of the Tribunals shall be sent.  Every copy of the originating application sent by the Secretary of the Tribunals under this Rule shall be accompanied by a written notice which shall include information, as appropriate to the case, about the means and time for entering an appearance, the consequences of failure to do so, and the right to receive a copy of the decision".

And under Rule 3:

		"3(1)  A respondent shall within 14 days of receiving the copy originating application enter an appearance to the proceedings by presenting to the Secretary of the Tribunals a written notice ....". 

	Under Rule 17 of the Rules it is provided that:

		"17(1)  Any notice given under these Rules shall be in writing.

		(3)  All notices and documents required or authorised by these Rules to be sent or given to any person hereinafter mentioned may be sent by post .... or delivered to or at:- 

	And then:

			"(d)  in the case of a notice or document directed to a party:-

				(i)  his address for service ........ or

				(ii)  if no address for service has been so specified, his last known address or place of business in the United Kingdom .....". 

	So that was what was done.  This Originating Application, which was addressed to Mr D. Millne, was apparently, although we have not seen all the documents, duly sent to a Mr Millne at the address given.

	Here the Tribunal itself had grave reservations about what happened.  But apparently, letters to individuals by name at this address are not received and are sent back and it is alleged that that happened.  At any rate, however that may be, the Industrial Tribunal duly continued the proceedings against Mr Millne, appointed a hearing date and on 1 February 1993 the hearing was held before Mr Speker, as Chairman and two Industrial Members at Newcastle upon Tyne.

	The Tribunal, in the absence of Mr Millne, proceeded to hear the case as they are entitled to do.  The application had duly been sent to Mr Millne.  He had not entered an appearance and they started out like this.  They held that Mr Dawson had been unfairly dismissed and they went on:  

		"The Applicant attended the Tribunal in person [that is Mr Dawson] but was not represented.  The respondent [that was Mr Millne at that stage] had not entered a Notice of Appearance and did not appear at the hearing and was not represented.  On the basis of evidence and documentation supplied by the applicant it was confirmed that the correct respondent is Inpholink Ltd and accordingly the title of the proceedings was amended accordingly".  

	It is well established that the Tribunal has jurisdiction to make such an order where the wrong Respondent has been named, notwithstanding that the time for presenting a complaint to the Tribunal has elapsed.  That is established in Cocking  v  Sandhurst Stationers Ltd [1974] ICR 650 and it was there held, where an employee had mistakenly made a complaint against the subsidiary company when in fact he was employed by the holding company, that the parent company, as it was called, should be substituted or added as Respondent and that there was jurisdiction to do that notwithstanding that time had elapsed, the time for presenting a complaint.  

	That was the decision in that case and we have no doubt whatever that in the present case the Tribunal had jurisdiction to substitute Inpholink Ltd as apparently the correct identification of the employer.  They then proceeded to try the case in the absence of Inpholink Ltd and it is self-evident that the rules had not been complied with in relation to Inpholink Ltd.  

	Inpholink Ltd had not, until that moment, been named as Respondent.  Inpholink had not been served.  It is perfectly true that the process had been sent as required by the rules to Mr Millne at an address which was also, apparently, an address used by, if not the registered address of, Inpholink Ltd.  But that is not service on a person who is not named as Respondent and in those circumstances the only proper course for the Tribunal, having decided to substitute a fresh Respondent as being the person against whom the application was made, was to have adjourned so that the papers could be served on that Respondent.

	It is said today to us by Mr Patel, to whom we are very grateful, on behalf of Mr Dawson, that it was all beside the point.  I quote from my note of what Mr Patel told us. "Whether or not Mr Millne or Inpholink Limited is named is immaterial because the Applicant is making a claim against his employer.  In other words it is a mere misnomer.  Mr Millne was to all intents and purposes the employer of Mr Dawson.  If the amendment is made that does not require new service on Inpholink Ltd because of the principle in Cocking  v  Sandhurst.  It is a distinction without a difference because Inpholink was in precisely the same place as Mr Millne.  In those circumstances, service was on a Respondent named as employer by the Applicant and the principles in Cocking  v  Sandhurst assume that amendment could be made to substitute Inpholink as Respondent in place of Mr Millne because, to all intents, they were the same, the employer".  

	One would mention at that point that that is not the ratio of Cocking  v  Sandhurst. If there has been a bona fide mistake, a mistake made in good faith as to the identity of the Respondent, then subject to the conditions laid down in that case the correct person can be substituted as Respondent.  But Mr Patel continued:  On the facts of this case, it makes no difference who is named as Respondent, they share the same address.  The employer is deemed to receive the application under Section 7 of the Interpretation Act".  

	We can only say that we find that submission entirely unacceptable.  There was no suggestion here that Inpholink and Mr Millne were in fact the same person; in other words that Inpholink was simply a sham or smoke screen of some sort, that it had no genuine independent existence, no genuine board of directors, no shareholders apart from Mr Millne, that it was a mere smokescreen to cover up Mr Millne's activities.  What was suggested was, as the Tribunal accepted, that the wrong person had been named as Respondent and they substituted the right person.  They were fully entitled to do that, but what they were not entitled to do was to proceed in the absence of the right person.  They proceeded in the absence of Mr Millne and of the company.

	Then the company applied for a review of the decision; and the decision of the Industrial Tribunal about that proceeded, it appears to us, entirely on the basis that letters were being sent away not in good faith, but because there was an attempt to avoid service on Mr Millne; and the Tribunal went into that at considerable length.  

	Mr Millne complained in his appeal to us that they did not conduct the hearing of the application for a review fairly; we are not concerned with that for the moment.  It appeared to the Tribunal that Mr Millne was in effect evading service, if I can put it very shortly.  They did not accept that "the Respondent", a very ambiguous phrase in the circumstances, had not received notice of the proceedings leading to the decision.  

		"The Tribunal was unanimously of the view that the respondents [who had suddenly become plural for some reason] had received the correspondence and were aware of the applicant's application ..... but had chosen to ignore it and therefore elected not to participate in the proceedings.  The fact that the letter containing the first Notice of Hearing was marked `not at this address - already advised' was an indication that the respondent was aware the correspondence was from the Industrial Tribunal and that previous correspondence had been sent by the Tribunal".

	It was an enquiry into the good faith of Mr Millne.  They were not disposed to accept what was said to them by Mr Millne.  So far so good.  What they did not consider was that there was not and never had been service on Inpholink Ltd.  In those circumstances, there was only one order which they could and should have made at the hearing in February, namely that they would adjourn for Inpholink to be served and that was precisely the same order which they should have made when they were invited to review their decision in August; and that is a point which appears to have been entirely overlooked.

	In those unhappy circumstances, the Industrial Tribunal appears to us first of all to have formed a very adverse view of Mr Millne and, secondly, to have proceeded on a basis which is bound to be held a nullity in the absence of a Respondent who was never served and had no opportunity to be heard.  We have no evidence before us to allow us to conclude - indeed, it would not be a matter for us, it would be a matter for the Industrial Tribunal - that Inpholink was a mere sham, a mere smokescreen and in those circumstances they are fully entitled to participate as Respondent in the application which is made by Mr Dawson and it does appear to us to be a very great pity that this point was simply overlooked whilst other points were investigated.  

	Mr Dawson's application has therefore not been properly and lawfully heard and the matter in our view, must be remitted.  Unhappily, the Tribunal has applied its minds to matters which appear to us not to be in point in the circumstances and Mr Millne has formed a very adverse view of the way in which he was treated.  

	We think the only possible and proper order is that the case should be remitted to be tried by a differently constituted Tribunal and as we understand it, Mr Millne has full authority from Inpholink Ltd to represent them here today.  An appearance is to be entered by Inpholink Ltd within 14 days and the application is to proceed.