Appeal No.	 EAT/602/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MS B SWITZER

MRS K CLAYBROOKE	APPELLANT

HAYDN PHILLIPS HUGHES & THE GUARDIAN CARE GROUP PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON

and

MR KALLIPETIS QC
(ELAAS)	

	MR JUSTICE MORISON (PRESIDENT):     This is an extraordinary matter to come before us. The underlying facts are these. Mrs Claybrooke presented a complaint to an Industrial Tribunal through the Royal College of Nursing naming as the two employers in Box 4: Haydn Hughes, who we will describe as receivers, and secondly the Guardian Care Group Plc. The second respondents were added as a result of a specific application to that effect. We are told, and accept, that an application to add two other respondents to this appeal was unsuccessful.

	Paragraph 10 of the form IT1 says this:

“The business of the Nursing Home was licensed to Novamanor Ltd via its registration with Exeter Health Authority. Novamanor Ltd was/is not in receivership. Therefore the (LPA) Receiver did not have the legal right to:-
...
4.	Act as an employer.
5.	Dismiss myself as an employee of Novamanor.”

Up to there it is plain that this IT1 was asserting that Mrs Claybrooke was employed by an entity other than the two targets who were named in the IT1, and was asserting therefore, that she could not be dismissed by either of the two people against whom she was alleging unfair or, as it is put, illegal dismissal without any formal procedure being followed. Paragraph 6 of Box 10 of the IT1 provides:

“6.	If, however, it is demonstrated that I was an employee of [the Receivers] or other party or parties, I would wish to claim I was unfairly dismissed. No reasons were given and no procedure was followed that would have given me an opportunity to put my case.”

	The Industrial Tribunal considered this complaint at a hearing on 2nd April 1997. In essence, they concluded in paragraph 25 that:

“25	     The first question is whether Mr Hughes [that is the first respondent] was the employer or not. Under the terms of the mortgage he was entitled to take possession of the building and also the business. By section 37 of the Insolvency Act 1986 he became liable on any contract of employment adopted by him in the performance of his functions. He maintains that from 11 August he became her employer by operation of the Insolvency Act. In our judgment he is correct. Regardless of any question of who was the registered proprietor, he became Mrs Claybrooke’s employer.”

	Against that finding Mrs Claybrooke wishes to appeal. It is her assertion which she had repeatedly made, that she was not the employee and never was the employee of the first respondent. She says that she was not aware of the final paragraph in Box 10 of her IT1; that she was saying that if it could be demonstrated that she was an employee of the Receiver she would wish to claim she was unfairly dismissed.

	Accordingly, quite perversely, she was asserting a case which she now wishes to say is completely wrong. As a result of the tribunal having given the decision that they did, she says that she is prevented from asserting rights in relation to the circumstances in which the Receivers have acted, because they are relying on the terms of the Industrial Tribunal decision to prevent her from asserting what she believes to be the true position.

	Although she has brought this entirely on herself, in the sense that she and the Royal College of Nursing must be treated as one entity for this purpose, it seems to us that it is arguable that the Industrial Tribunal were wrong to have concluded that the Receivers were her employer. It may be that the Receivers themselves would accept that they were not her employer, and if they were, it may be possible for them to indicate that, so that this appeal can be allowed by the consent of the parties, so as to remove the block which Mrs Claybrooke says there is on the future litigation which she had in mind either against the Receivers or against other parties such as Pinehurst.

	Accordingly, in the very peculiar circumstances of this case, we are prepared to say that it should go forward for a full hearing on that one point alone. Namely, whether the tribunal were right in law in concluding that the Receiver was her employer.

	I will reserve this case to myself simply because I have spent some time preparing it. I should make it perfectly clear to Mrs Claybrooke that our proceedings here are extremely brisk and well organised, and that we do not tolerate interruptions, either during the course of argument or in the course of the tribunal giving judgment. I shall not hesitate to exercise such coercive powers as I have over her if it should transpire that she wishes to interrupt in future.