Appeal No. UKEATS/0040/08/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 8 January 2009

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

ANITA DOWNING T/A DOWNING PRIVATE NURSING HOMES	APPELLANT

MR D MCALLISTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR I TRUSCOTT 
(One of Her Majesty’s Counsel)
Instructed by:
Messrs John Henderson & Sons Solicitors
8 Bank Street
Dumfries
DG1 2NS	
For the Respondent	MR D McALLISTER
(The Respondent in Person)	

SUMMARY
CONTRACT OF EMPLOYMENT
JURISDICTIONAL POINTS:  Worker, employee or neither
Tribunal, having issued an order dismissing the claim against a respondent on 5 November 2007, made an order at a case management discussion on 14 December 2007, sisting them as the respondent in the case.  On appeal by the respondent, held that the tribunal had no power to sist the respondent as a party to the case after it had pronounced the order of dismissal.  Claim dismissed.  

THE HONOURABLE LADY SMITH
INTRODUCTION 
1.	This is an appeal by respondents in an equal pay claim.  The claimant worked for the respondents as a bank nurse from October 2005 until January 2006 and had the status of worker during that period.  He ceased making himself available to work for the respondents on 5 March 2007.  On 1 April 2007, the undertaking in which the claimant had worked was transferred to Welcare Homes Ltd. 

2.	The claimant named both these respondents and Welcare Homes Ltd as respondents in his form ET1, which was lodged on 3 November 2006.  It appears that he named Welcare as a respondent because he knew that there was an ongoing transfer process and that they were the prospective new owners of the home.

3.	At a case management discussion at the Employment Tribunal in Glasgow on 23 January 2007,  Chairman Laura Docherty, the claimant agreed that Welcare should be dismissed from the proceedings.  On 7 February 2007, the following order was issued:  

“In accordance with Rule 10(2)(l) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the Chairman having considered the further information received,  ordered Welcare Homes Ltd, Ashgillhead Road, Shawsburn, By Larkhall, ML9 3AE to be dismissed from the proceedings”

4.	Notwithstanding that order, following a case management discussion on 7 August 2007, the Tribunal, Chairman Laura Docherty, on the application of the claimant, sisted Welcare as respondents once more, by order dated 8 August 2007.  Welcare lodged a further ET3 in which they stated that the claimant’s employment had not transferred to them.

5.	On 29 October 2007, the claimant wrote to the tribunal by letter which included the following application:

“I am also writing to let you know that I am requesting an order that the first respondent – Downing Nursing - should now be dismissed as a party to this case as they no longer have any responsibility regarding my claim”

6.	The Tribunal thereafter, Chairman Mr Cape, dismissed these respondents as respondents in the proceedings, on 5 November 2007.  The making of that order was intimated by letter of the same date.

7.	The claimant did not seek a review of the order dismissing the proceedings against the respondents.  

8.	At an earlier point in the proceedings, it had been determined that the claimant was not, at the relevant time, “employed” within the meaning of section 1(6)(a) of the Equal Pay Act 1970.  A review in respect of that determination took place on 10 August 2007, it was determined that the claimant did in fact qualify.  The Chairman that heard the review, Mr C S Watt, noted that there was a preliminary issue raised by Welcare in regard to TUPE and a case management discussion was fixed to discuss the appropriate procedure for addressing that issue.  

9.	The case management discussion to discuss the procedure for the TUPE issue took place on 14 December 2007 before the Employment Tribunal sitting in Edinburgh, Employment Judge Mr Roy McIver.  These respondents were not represented, having been dismissed from the proceedings some five weeks earlier.  It is against an order that resulted from that case management discussion, sisting these respondents as respondents in the case once more, that this appeal is taken.  

CASE MANAGEMENT DISCUSSION OF 14 DECEMBER 2007
10.	The note of discussion, which is dated 12 May 2008, records that Welcare’s solicitor submitted that they were not appropriate respondents as the claimant had never worked for them and that he confirmed to the Tribunal that he had not made himself available for work after 5 March 2007.  That was a date several weeks prior to the transfer of the undertaking from these respondents.

11.	At paragraph 3 of the note, the Tribunal, having noted that the claimant thought that the effect of TUPE was that the respondent’s liabilities to him would have transferred to Welcare, states:

“It is clear that in terms of Regulation 4(3) of the 2006 Regulations that this would only apply to a person employed by the transferor (Downing) immediately before the transfer, which the claimant was not, and accordingly Downing should be sisted as the respondent and Welcare dismissed.”

He does not appear to have given any consideration to the fact that the respondents had been dismissed from the proceedings on 5 November 2007. 

RELEVENT LAW
12.	Dealing firstly with the relevant procedural rules, it would appear that the order of 5 November 2007 was made in exercise of one of the powers available to a tribunal under and in terms of rule 10 of Sch 1 to the Employment Tribunals (Constitution & Rules etc) Regulations 2004 (“the 2004 rules”), the provisions of which include:

“(1)	… the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate.  Such orders may be any of those listed in paragraph (2) or such other order as he thinks fit …..
  (2)	Examples of orders which may be made under paragraph (1) are orders - …
(l)	dismissing the claim against a respondent who is no longer directly interested in the claim. …..
(r)	that any person who the Chairman or Tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings.”

Dismissal may also be ordered under the 2004 rules, on the application of a respondent, in terms o f rule 25, the provisions of which include:  

“(1)	A claimant may withdraw all or part of his claim at any time – this may be done either orally or at a hearing or in writing in accordance with paragraph (2). …
 (3)	… where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date.  Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
 (4)	Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed.  Such an application must be made by the respondents in writing to the Employment Tribunal office within 28 days of the notice of the withdrawal being sent to the respondent.  If the respondent’s application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).”

13.	The concept of dismissal as referred to in both rules 10 and 25 would appear to be the same, namely that it is a final order which brings an end to the proceedings and they cannot be continued against that respondent by the claimant once dismissal has been ordered.  

14.	The effect of orders for dismissal in proceedings before the Employment Tribunals have been discussed in a number of authorities in England.  In the case of Staffordshire County Council v Barber [1996] ICR 379, the Court of Appeal held that an order of dismissal following the withdrawal of a claim by a claimant was a judicial decision that operated by way of res judicata to bar the resurrection of the claim.  At p.386, Mummery LJ said:  

“The policy behind the rules is finality in the resolution of disputes.  The rules exist not only to protect society and its citizens from the obsessions and frivolities of serial suers, but also to ensure that, even for those who litigate disputes in good faith, all cases must come to an end.  The general rule is that if a court of competent jurisdiction has reached a final and conclusive decision on the merits of a case, it is against public policy to allow it to be re-opened ….. even if that decision appears to be wrong in the light of the law as then understood or as subsequently evolved and clarified by judicial decision.  The injustice and inconvenience which would flow from allowing relitigation usually outweigh the injustice of leaving even an erroneous decision undisturbed.”

Regarding the particular nature of an order for dismissal pronounced by an Employment Tribunal, at p.287, he said:  

“The decision to dismiss is not simply a rubber stamping, administrative act;  it involves the exercise of a judicial discretion and an adjudication by a competent tribunal …..”

15.	In Lennon v Birmingham City Council [2001] IRLR 826, the Court of Appeal again considered the question of the effect of an order for dismissal pronounced by an Employment Tribunal.  The above case of Barber was referred to.  At paragraph 30, Buxton LJ said:

“….. it was argued that Barber is distinguishable from the present case because in that case the court knew the reasons for the withdrawal of the original claim.  In this case, we do not know the reasons.  That is, in my judgement an incorrect argument.  The doctrine turns not on the reason why a court made the order, but on the simple fact that the order was in fact made.  It is for that reason that, in the case of issue estoppel, the court will not re-enter the merits or justice of allowing the proceedings to continue …. .”

16.	Barber was also followed by this tribunal in the case of Kirklees MBC v Farrell [2000] ICR 1335, and referred to by the Court of Appeal as containing an accurate statement of the law in Dattani v Trio Supermarkets Ltd [1998]. ICR 884BI.

17.	In the case of Khan v Heywood & Middleton Primary Care Trust [2007] ICR 24, the Court of Appeal had the opportunity to consider the 2004 rules, in particular rule 25.  There, a claimant had withdrawn a claim under rule 25(1) and sought to revive the claim at a later stage.  The claim had not been dismissed under rule 25(4).  The Court of Appeal referred to the judgement of Rimer J, at the stage that the case was before this tribunal where, at paragraph 24, he said:

“….. the consequences of the dismissal of a previously withdrawn claim will be to prevent the claimant from starting a further claim based on the same cause of action, whereas (by inference) a mere withdrawal of the claim will not.”

Regarding the effect of a withdrawal, at paragraph 79, Wall LJ, in Khan, said:

“Those particular proceedings have indeed been brought to an end, and cannot be revived against a respondent.  That does not mean, however, that, absent dismissal, a fresh claim on the same facts cannot be made.”

18.	Accordingly, the decision in Khan also makes it clear that once a claim has been dismissed not only can the claimant not revive that particular claim but cannot start a fresh claim on the same basis.

19.	Finally, in the recent judgement of Richardson J, sitting in this tribunal, in British Association for Shooting and Conservation v Cokayne [2008] ICR 185, at paragraph 26 observed that dismissal was a final determination, it formally terminated proceedings.  

THE APPEAL
20.	For the respondents, Mr Truscott QC relied on two separate grounds of appeal.  The first was to the effect that the tribunal erred in law when, on 12 May 2008, it ordered that the respondents should be sisted as respondents because of the dismissal that had already occurred on 5 November 2007.

21.	The second was to the effect that, separately, the tribunal had no jurisdiction to set aside the claimant’s withdrawal of the claim against the respondents.  As that ground was developed, it came to be that even if, somehow, the dismissal of the claim did not mean that the claimant was barred from further proceedings, the tribunal could certainly not simply allow the revival of the dismissed claim, which was what it had done.  

22.	Mr Truscott submitted that when the claimant requested, in his letter of 29 October 2007, that the claim against the respondents be dismissed and it was dismissed, the matter became res judicata.  In support of that submission, he referred to the authorities cited above.  There was simply no power vested in the tribunal to revive the dismissed claim.  He moved that the appeal be allowed, an order pronounced recalling the order sisting the respondents and the dismissal of the claim against them be restored.  

23.	Mr McAllister observed that the authorities referred to concerned cases where respondents had asked for dismissal but here, he had asked that the claim be dismissed.  That was a distinction that could be drawn.  He recognised that the issue was whether the tribunal had, on 14 December 2007, the power to do as it did, in sisting the respondents into the case.  He had understood that it did because the Employment Judge had indicated that that could be done.  He relied on rule 10(2)(r) of the 2004 rules and submitted that the tribunal was acting under that power.

24.	Very frankly and properly, Mr McAllister said that he was aware of the implications of the argument against him in the appeal.  He had been aware that he could not advance his claim against two respondents and aware that he could end up with no claim against anyone at all.  It had been a long process and he was anxious to see it completed.

DISCUSSION
25.	There is no reason to think that “dismissal” as used in rule 10(2)(l) has any different meaning from “dismissal” as used in regulation 35(4).  Thus, where a case against a particular respondent is “dismissed” that means that the proceedings against that respondent are brought to an end and those proceedings cannot be revived.  They are brought to an end by a judicial act.  The process in which the claim was being litigated is terminated.  Other than through the power of review, which does not arise in this case, there are no means available to a claimant whereby his claim can be resurrected.  That that is so is clear from the authorities referred to above, particularly from Khan.  This was not a case of respondents seeking dismissal under rule 25(4) but the fact that the dismissal was on the application of the claimant puts it in exactly the same category as if the respondents had sought such an order with not only their application not being opposed but actually consented to by the claimant.  It cannot be open to a tribunal (it does not seem that the claimant actually made any application at the hearing on 14 December 2007) to resurrect the claim against the respondents by sisting them as parties to the claim once more.

26.	The power of a tribunal, under rule 10 of the 2004 rules, to make any order that appears to them to be appropriate does not alter matters because it can never (absent via review judgment) be appropriate to resurrect proceedings that have been brought to an end.  In particular, the fact that rule 10(2)(r) gives as an example of a permitted order one where the tribunal joins as a party, any person whom he considers has an interest in the proceedings, does not empower a tribunal to pronounce such an order.

27.	Separately, although Barber is an English authority and, under English law, res judicata appears to be regarded as an aspect of the wider principle of estoppel, I am persuaded that what is said in Barber accurately reflects the position under Scots law regarding the question of whether or not the dismissal of a claim by an employment tribunal, on the application of a claimant, is res judicata so as to prevent the raising of a fresh claim in respect of the same matter by the claimant.  It is a final decision in the case and it has the effect of barring the claimant from raising further proceedings between the same parties for the same remedy on the same grounds.  That is not, of course, what the claimant sought to do here.  No fresh claim was presented.  The tribunal, erroneously, allowed the terminated claim to be revived.

Disposal 
28.	In these circumstances, I will pronounce an order upholding the appeal and dismissing the claim.