Appeal No. EAT/1413/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 December 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR D A C LAMBERT
MISS D WHITTINGHAM

1) MR W SEABRIDGE 2) MR P GATER	APPELLANTS

1) CONSTRUCTION PROJECTS TRAINING LTD	RESPONDENTS
2) MR A R TOWERS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	MR G BEALEY
Representative
Stoke on Trent Citizens 
Advice Bureau
Cheapside
Hanley 
Stoke on Trent ST1 1HL	

JUDGE PETER CLARK

1	On 12 April 1999 both Applicants before the Shrewsbury Employment Tribunal, Wayne Seabridge and Paul Gater, then aged 17 years, commenced work as trainee joiners on a Wimpey Homes building site at Stoke on Trent.  The main contractor on site was Wimpey Group Services Ltd (Wimpey).  Among sub-contractors on site were A R Trowers, plastering contractors, and Pete & Steve, Joinery Contractors (P&S).

2	By their Originating Applications, presented to the Employment Tribunal on 14 September 1999, both Applicants, who have been represented throughout by the Stoke on Trent Citizens Advice Bureau, alleged that they had been referred to this training scheme by the Rainbow Job Centre in Bentilee, Stoke.  The first part of training was school based on site.  Following that 6 week period they were assigned to work within P&S.  They were both dismissed on 14 June 1999 for leaving the site early on several occasions.  They complained of unfair dismissal and disability discrimination.  Both had been assessed by the Local Education Authority and had been provided with additional educational assistance at school.  They named as Respondents to the complaint (1) Construction Projects Training Ltd (CPT)  (2) A R Trowers  (3) Wimpey Homes and (4) P&S.  

3	Notices of Appearance were entered on behalf of all 4 Respondents.  Proceedings against Wimpey and P&S have since been discontinued, leaving CPT and A R Trowers as the remaining Respondents.  

4	This is an appeal by the Applicants against an Order of a Tribunal chaired by Mr R Harper sitting on 2 October 2000 and promulgated with extended reasons on 16 October, refusing their application to join South Birmingham College (the College) as an additional Respondent.  

5	By their Notices of Appearance both Wimpey and P&S denied ever employing the Applicants.  Hence the claims have been discontinued against them.  A R Trower admits employing the Applicants, but says that they were dismissed on 14 June 1999 for poor timekeeping.  There is an issue in the case whether either Applicant is disabled within the meaning of section 1 of the Disability Discrimination Act 1995, but if they are, it is denied that they were less favourably treated by reason of their disability.  Any trainee who does not turn up for work on time can, after several warnings, expect to be dismissed regardless of any disability he may have.  CPT asserted that the relevant employer was A R Trowers and themselves denied any liability to the Applicants.  

6	At the hearing before the Tribunal on 2 October it was agreed that the only issue then to be determined concerned the status of CPT; a further question as to whether the Applicants were disabled within the meaning of the Act was put over to another day.  

7	As a result of enquiries instigated by the Tribunal it appeared that CPT was wholly owned by the college.  CPT had no employees as such.  All those working for CPT were employees of the college on secondment.  It should be noted that the 1995 Act provisions do not apply to employers of 15 or less employees.  

8	In these circumstances Mr Bealey on behalf of the Applicants applied to join the college as a Respondent.  On that application the Tribunal held (reasons paragraph 6) that it would not be just and equitable to do so.  The proceedings had been in existence for over a year.  The college is a separate legal entity from a legal point of view to CPT.  The attempt to bring the College into the frame is substantially out of time.  The fact of ownership of CPT does not make the College an employer.  

9	In the event the hearing was adjourned so that the Applicants could deal with CPT’s contention, raised for the first time at that hearing, that it had no employees, or at any rate, did not have 15 or more employees.  The adjourned hearing we see is due to take place on 11 January 2001.  

10	Turning to the present appeal Mr Bealey challenges the Tribunal’s refusal to allow joinder of the College as a Respondent to these proceedings.  We have set out the Tribunal’s reasoning at paragraph 6 of their extended reasons.  It seems to us they took into account two factors in exercising their undoubted discretion to refuse joinder:
		(1) delay
		(2) no cause of action against the College.  

11	It is clear that delay is a relevant but not determinative factor - see British Newspaper Printing Corporation (North) Ltd -v- Kelly [1989] IRLR 222 Court of Appeal.  We do not believe that this Tribunal fell into the error of elevating this factor into being decisive of the point. 

12	The real question, it seems to us, is whether the Applicants had mistakenly identified the wrong person as the proper Respondent.  For example, in Watts -v- Seven Kings Motor Co Ltd [1983] ICR 135, a Tribunal made an Order for compensation for unfair dismissal against the Respondent named by the Applicant as his employer before the identity of the true employer, a similarly named firm, was discovered.  The EAT held that a genuine mistake as to the identity of the employer could be corrected, by amendment, even after judgment had been entered against the original Respondent.  

13	In this case, it seems to us that there is no real evidence that any nexus exists between the Applicants and the College as to render the College potentially liable to the Applicants as employer under the 1995 Act.  Mr Bealey points to the fact that the College employed Mr Bowden who held himself out as being a Training Co-ordinator with CPT.  But it seems to us that where an employee is on secondment to a separate company, that employee acts on behalf of the second company and does not thereby create an employment relationship between his principal employer and another.  As the Tribunal point out the College and CPT are separate legal entities. Any relevant relationship existed between the Applicants and CPT as trainers rather than with the college.  Further, there seems to have been no mistake as to identity in this case.  As early as 28 July 1999 Mr Smith, who described himself as Operations Manager, wrote to Mrs Seabridge, the Applicant’s mother, on CPT headed paper pointing out that 
“We are a college based training organisation.”   

Mr Bealey accepts that from those early days, the Applicants and their adviser were aware of the relationship between CPT and the College but nevertheless no steps were taken to join the College as Respondent as opposed to CPT until, it seems, the point about the 15 employees was taken on behalf of CPT. In these circumstances, it seems to us that this case is distinguishable from cases such as Watts, and the case of Milestone -v- Leakey  [1982] IRLR 4 to which Mr Bealey has referred us.

14	There remains a factual question to be determined by the Tribunal as to whether CPT is in fact the employer of the Applicants for the purposes of the Act; that matter is in dispute.  However we are not persuaded that the Applicants are able to advance any different case to show that they were employed not simply by Mr Trowers, but also by the College as opposed to CPT, a separate legal entity.  

15	In these circumstances we can see no grounds for interfering with the Tribunal’s exercise of discretion in this case as a matter of law.  Accordingly, this appeal must be dismissed.