Appeal No.	 EAT/0673/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 April 2002

Before
THE HONOURABLE MR JUSTICE WALL
MS S R CORBY
MR D J HODGKINS CB

MR A M SCOTT & OTHERS	APPELLANTS

(1) YORKSHIRE MINERS WELFARE CONVALESCENT HOMES
(2) NATIONAL UNION OF MINEWORKERS YORKSHIRE AREA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR C BOURNE
(of Counsel)
Messrs Thompsons Solicitors
17 Wellington Street
Leeds
LS1 4DL	
For the 2nd Respondent	MR A SCARGILL
(Representative)
National Union of Mineworkers (Yorkshire Area)
2 Huddersfield Road
Barnsley
S70 2LS	

THE HONOURABLE MR JUSTICE WALL

1	In this appeal Mr Scott and Mr and Mrs Aldridge appeal against a decision of the Leeds Employment Tribunal that there was no relevant transfer under the Transfer of Employment (Protection of Employment) Regulations 1981 (known as TUPE) when the First Respondent to the appeal, the Yorkshire Miners Welfare Convalescent’s Home, ceased to manage a convalescent home at Low Hall, Scalby as a consequence of which they (that is the Applicants Mr and Mrs Aldridge) were made redundant.  The property at Low Hall, Scalby is owned by the National Union of Mineworkers (NUM) Yorkshire Area who are the Second Respondents to this appeal.  

2	By way of preliminary application in this appeal Mr Arthur Scargill, on behalf of the National Union of Miners Yorkshire Area, seeks to have the appeal against the NUM Yorkshire Area dismissed on the grounds that it was improperly joined in the proceedings and because no relief was sought against it.  He has developed this argument in a helpful skeleton which has been presented to us, together with a decision of the Employment Appeal Tribunal in a case called Eemtrans UK Ltd v Ramage Distribution and Mrs McMahon and Massey Freight UK to which I will return in just a moment.

3	For present purposes it is not necessary (indeed I think it would be inappropriate) to go into the facts of the case.  The position is, in terms of procedure, that on 22 August 1999 both Mr and Mrs Aldridge issued their forms ET1 in which they sought, against the Yorkshire Miners Welfare Convalescent’s Home alone, unfair dismissal due to redundancy.  They added, in both cases, “contrary to TUPE”, and in the alternative, failure to find alternative employment.  

4	Those applications were answered by the First Respondent to the appeal, which for this purpose I will henceforth call ‘the Trust’.  The answer entered by the Trust effectively argued that there had been a TUPE and that the Trust was not liable to the Appellants.  The notice of response concluded:

“In all the circumstances the Respondent applies for the National Union of Mineworkers to be joined as Second Respondent in this case as it now believes that on or around 4 June 1999 there may have been a transfer of an undertaking as defined within the Transfer of Undertakings (Protection of Employment) Regulations 1991, as amended, in which case any liability which is denied but may be found to have attached to the Respondent in connection with the Applicant’s claim should pass to the National Union of Mineworkers pursuant to Regulation 5.”

5	What then appears to have happened is that the matter was referred to a Chairman of Tribunals and the Chairman directed that the National Union of Miners Yorkshire Area should be joined.  That appears to have happened on 28 September and 8 November.  Mr Scargill told us that the National Union of Miners Yorkshire Area was then notified in November.  There was a Directions Hearing on 7 January; at that hearing, Mr Scargill tells us, that the Appellant’s solicitor, Ms Karen Chapman, requested a Preliminary Hearing to determine if there had been a TUPE transfer to the NUM Yorkshire Area.  He says that she pointed out that it was the First Respondent, not the Appellants, who had applied to have the NUM Yorkshire Area joined as Second Respondent and because the question of a transfer to the NUM Yorkshire Area was not part of the Appellant’s case it needed a Preliminary Hearing to decide the question raised by the First Respondent, that is, the Trust.  Mr Scargill says that the NUM Yorkshire Area supported Ms Chapman’s view and stated that is was essential to have a Preliminary Hearing to dispose of the argument (that is the TUPE argument) bearing in mind that the Applicants at that stage had not submitted any claim for relief against the NUM Yorkshire Area.  

6	However, the Chairman rejected Ms Chapman’s request and said that the whole case should be heard together.  That, indeed, is what happened when the case was heard in Leeds in March 2000.  Mr Scargill, in the letter dated 9 August 2001 to the Tribunal, repeated the point that the Applicants had not submitted any claim for relief against the NUM Yorkshire Area and that is was crystal clear that the Applicants were pursing a case exclusively against the Trust.  Mr Scargill then argued that it would appear that interlocutory applications should be held in the appeal, particularly in view of the Tribunal Chairman’s decision that the NUM Yorkshire Area’s objection to his decision to join the union as Second Respondent and the fact that the Applicants did not seek relief against the NUM Yorkshire Area.  I have anticipated events slightly, because what happened at the hearing before the Tribunal in March was that the Tribunal found that there had not been a TUPE within the regulations and it is from that decision, of course, that the Appellants appeal.

7	Mr Scargill’s first point derives from the form of the Originating Application as set out in the Regulations in 1993 which applied to this case.  He points to the fact that under Schedule 1 paragraph (1) where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application which shall be in writing and shall set out, amongst other things - and this is the point on which he relies: 

“(b)	the names and addresses of the person or persons against whom relief is sought; and
(c)	the grounds, with particulars thereof, on which relief is sought.”

Mr Scargill also relies on paragraph 17 of the Schedule, which is headed:

“Joinder and representative respondents
(1)	a tribunal may at any time, on the application of any person made by notice to the Secretary or of its own motion, direct any person against whom any relief is sought to be joined as a party; and give such consequential directions as it considers necessary.”

Mr Scargill relies on the words ‘against whom any relief is sought’ to argue that at no stage in his argument has relief been sought against the NUM Yorkshire Area, it has always been sought against the Trust.  In these circumstances, Mr Scargill argues that the Chairman was wrong in the first instance to join the NUM Yorkshire Area as parties to the proceedings and that the appeal against the NUM Yorkshire Area should be dismissed on that ground, and for the deficiency in the Originating Application.  

8	Mr Scargill is, of course, correct to say that rules are made to be obeyed, but rules are also there to ensure that justice is and can be done.  Before developing that theme, I prefer briefly to look at the Eemtrans decision to which we have been referred by Mr Scargill.  Eemtrans was a case in which the Applicant before the Tribunal, Mrs McMahon, made it very clear indeed that she wished to pursue her application for relief against Eemtrans alone and was not interested in pursuing an application against Massey Freight whom Eemtrans sought to join on the basis that there had been a TUPE transfer.  In those circumstances, although Massey Freight was joined on the application of Eemtrans, they were discharged from the proceedings because no relief was being sought against them by the Applicant, Mrs McMahon.  The Tribunal, in a constitution chaired by His Honour Judge Wilkie QC made it very clear that in their view the rule was crystal clear and that if no relief was being sought against the party in question by the Applicant then the party in question should not be joined and had no status in the proceedings.

9	In our judgment Eemtrans does not apply to these facts.  It was made very clear by counsel at the hearing before Leeds in March that relief was being sought against the NUM Yorkshire Area, and although the Originating Application is deficient in not identifying the NUM Yorkshire Area by name and address, it is clear that an allegation was being made that there had been a TUPE transfer and that relief was therefore being sought against the NUM.  In our judgment it would be most unjust if we were to hold that the Appellants were not entitled to pursue that form of relief.  It would, we think, also, be unjust to Mr Scargill and the NUM Yorkshire Area.  If he had been successful in his application before the Chairman on 7 January 2000 to be discharged from the proceedings for lack of status, what would likely be to have happened would have been that the case would have proceeded in the absence of the NUM.  The application may well not have been resisted by the Trust and in those circumstances the NUM would have found itself (if the Tribunal had found in favour of the Applicant) responsible under TUPE without having had the opportunity to argue the point in court.  

10	We feel that similar considerations apply today because if we were to discharge the NUM Yorkshire Area without further ado, no doubt Mr Bourne, on behalf of the Applicants, would pursue the appeal against the Trust.  The Trust is not here and is not resisting it and if we were to allow the appeal, Mr Scargill and the NUM would find themselves once again facing in all probability a rehearing before the Tribunal without having had the opportunity to argue the merits on this appeal.  So, with great respect to him we do not think it is in fact in the interest of the NUM Yorkshire Area to be dismissed from this appeal.

11	There is also a technical point which is of some force in our view.  Namely, that it would have been open to the NUM Yorkshire Area to have appealed the decision of the Tribunal on 7 January refusing the interlocutory application and refusing to dismiss the NUM Yorkshire Area from the case.  On any view, Mr Scargill and the NUM Yorkshire Area are very substantially out of time for appealing that order and we would not be minded to grant permission to appeal it out of time.

12	For all these reasons therefore we think it is in the interests of justice that this appeal should proceed with the case being fully argued on both sides.  We would welcome Mr Scargill’s assistance in the substantive appeal which we will now begin to hear.