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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McDermott v. Florence Clothiers (Scotland) Ltd (t/a Sports Connections) [2004] UKEAT 0036_04_1811 (18 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0036_04_1811.html Cite as: [2004] UKEAT 36_4_1811, [2004] UKEAT 0036_04_1811

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APPEARANCES

 

 

For the Appellant	Mr B Mohan, Solicitor Of- Messrs Robert Carty & Company Solicitors 10A Anderson Street AIRDRIE ML6 OAA
For the 1st Respondent For the 2nd Respondent	No Appearance Nor Representation Per KPMG 24 Blythswood Square GLASGOW G2 4QS Mr M McLaughlin, Solicitor Of- Messrs Biggart Baillie Solicitors Dalmore House 310 St Vincent Street GLASGOW G2 5QR

SUMMARY
PROCEDURE

Procedure – sisting additional party


 


LORD JOHNSTON:

1. This appeal arises in a rather unusual way.
2. We were informed that, as narrated by the Tribunal, an original hearing in respect of the IT1 application, was convened on 26 August 2003. The applicant appeared, representing herself. There was no appearance for the then respondent who were in receivership. Apparently, the applicant indicated to the Tribunal that she wished to involve the now second respondent, and she was given a period of 21 days by the Tribunal to determine that matter.
3. On 24 September, the applicant's agents, who were then acting for her, wrote to the Tribunal office confirming that they did wish to cite the second respondents as a party and this request was granted in a decision dated 2 October 2003.
4. When the hearing with which this appeal is concerned took place on 9 February 2004, however, the issue of time bar was raised by the now second respondent and was sustained by the Tribunal on the basis of applying the test of reasonable practicability.
5. Before us, both Mr Mohan for the applicant and Mr McLaughlin for the second respondents, accepted that the Tribunal had applied the wrong test under reference to Gillick v BP Chemicals Ltd [1993] IRLR 437 and Drinkwater Sabey Ltd v Burnett & Anor [1995] IRLR 238.
6. What should have happened, in fact, was that the hearing on 9 February should have been a review of the original decision to sist the second respondent and that review should have been focussed on the question of whether or not the Tribunal had properly exercised its discretion in allowing the second respondent to be sisted, a much broader test than that adopted by the Tribunal in this case.
7. In these circumstances, we considered that the appropriate course to do is to allow this appeal, to quash the decision and to remit the matter to a differently constituted Tribunal to consider inter alia whether or not the original Chairwoman properly exercised her discretion against all the relevant factors that would apply to that matter in allowing the second respondent to be sisted. We will so order.