Appeal No. UKEAT/0059/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 February 2007

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MR D EVANS CBE
MR D G SMITH

MRS J NELSON	APPELLANT

1) EMMANUAL PAROCHIAL CHURCH COUNCIL
2) CANON GEORGE ANSAH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr Chris Andrews
(Representative)
Free Representation Unit
6th Floor
289-293 High Holborn
London
WC1V 7HZ	
For the Respondent	Mr Tayo Alabi
(Representative)
c/o The Vicarage
96 Clive Road
West Dulwich
London
SE21 8BU	

SUMMARY
Practice and Procedure
Tribunal added a party to the proceedings as part of its determination of a preliminary issue, which it proceeded to determine against that party without having heard from that party as such, without notifying him that he might be a party, and in contradiction of the submissions made to it by both the parties before it.  This was held procedurally flawed, and the case remitted to a fresh tribunal for re-determination.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	This is an appeal from a decision of a Tribunal sitting at London (South) whose reasons were promulgated in a reserved decision on 8 December 2006.  It was a decision on a pre-hearing review which perhaps unusually spread into 2 days and was followed by a further day of deliberations.  This fact may explain something of the procedural difficulties which resulted.

The Background
2.	Mrs Nelson, the Claimant, said in her originating application that she had been employed by the Parochial Church Council (“PCC”) as an administrative secretary to the Canon of a parish, and had also worked as an employee as a project co-ordinator or fundraiser again, she alleged, for the PCC.  When it began the hearing, the Tribunal had a response from the PCC which maintained that the relationship from her perspective was not as an employee but as a volunteer.  It also maintained that the relationship was not one relationship covering both jobs but two separate ones.  Nowhere in the ET3 was there any suggestion that the PCC were not the responsible party, so far as the work of the Claimant was concerned. Nowhere was it suggested that Canon George Ansah was.  

3.	We have had the advantage of hearing from Mr Andrews for Mrs Nelson and Mr Tayo Alabi for the PCC both of whom were the representatives of the parties at the pre-hearing review.  They agree that what happened was that the first day was taken up in large part by whether a body known as the Emmanuel Youth Community Centre (EYCC) should be joined as a party in the proceedings.  This was because it might have been on their behalf that Mrs Nelson had done her work as a project co-ordinator and fundraiser.  If they had been joined then there was a subsidiary secondary issue as to who should represent them.  The matter was adjourned to a later date, and some evidence was heard.  
3.	There was further discussion about the position of the EYCC.  In the course of final submissions, but not prior to that, the Chairman raised the question whether or not the Claimant had her relationship with the Reverend Ansah rather than the PCC.  He asked to be shown material which could satisfy the Tribunal that the Appellant had a contract with the PCC.  There had been no previous suggestion by the parties that Canon George Ansah was or might be the employer of the Claimant.  The request took Mr Andrews a little by surprise, but he did his best to answer it.  He referred the Tribunal to some documents which appeared to show that the PCC had exercised what it thought to be its power to terminate the relationship with Mrs Nelson.  We note that in the bundle before us there are at least four documents, one of which comes from Canon Ansah himself which might be thought to indicate a relationship of employer and employee or at least a contract between the Appellant and the PCC.  

4.	Canon George Ansah was not represented before the Tribunal.  He would have had no idea that he might be made a party.  It was therefore with some surprise that both the then parties received a decision, which we have already referred to as that of 8 December, which joined Canon Ansah as a second respondent.  It dismissed the claim of Mrs Nelson to have been an employee (whether of the PCC or the YCC does not matter for present purposes) in so far as her role as a project co-ordinator and fundraiser was concerned.  It declined to add the YCC as a party.  But instead of resolving what had been the issue put to it by the parties - which was whether the relationship between Mrs Nelson and the PCC was one of employer/employee or some other and different relationship - it concluded that there was a relationship of employer/employee with the Reverend Ansah.  It held in paragraph 32 that there was no contract or agreement with the PCC.  If there were no contract, there could of course be no contract of employment.  

5.	As to Canon George Ansah, it said in the next paragraph that there clearly was a contractual relationship which required him to pay her for work that she did as his administrative secretary, and that they agreed hours of work and rates of remuneration.

6.	The problem, as it seems to us, is that the first Canon George Ansah would have known that he was a party  to the proceedings (in his capacity as an individual, rather than as Chair of the PCC) was when he received the decision of 8 December. By then it had already been determined that Mrs Nelson was an employee of his.  That is something which he might have wished to contest.  It was a finding which exposed him to potential financial loss.  He might also have wished to be heard upon the question whether the PCC was the employer, not simply as a witness but exercising his rights to representation as a party.  It may be that the finding which the Tribunal made that there was no contract with the PCC was not a freestanding finding of fact: it may be, rather, that the Tribunal found there was no such contract with the PCC because it concluded that there was a contract with the Reverend George Ansah and therefore that the relevant contract, being one of employment, was with the one rather than the other.  

7.	The Tribunal did not make any reference to the power which it was exercising to join a party.  The power arises under the Employment Tribunals (Constitution and Rules etc) Regulations 2004 which at schedule 1 sets out the rules for the Employment Tribunal. By rule 10 a general power is given to manage proceedings.  Paragraph 10(2) indicates examples of orders which may be made in exercising that general power.  Paragraph 10(2)(k) provides that any person who the Chairman or Tribunal considers may be liable for the remedy claimed should be made a Respondent in the proceedings.  It is thus open to a Chairman or Tribunal to add a party to the proceedings even if, as here, neither party had themselves invited the Chairman or Tribunal to do so.  
8.	There is a power contained in sub-paragraph 4 for a person who is added as a party to make an application for the order to be varied or revoked.  That power is plainly intended to prevent any injustice if, for instance, the party who is joined is not present as such at the proceedings at which the joinder occurs.  He may thus ask a Tribunal to think again.  It does not seem to us, however, to be procedurally proper to reach a determination as to part of the case against a party before that party has been joined.  If a party is to be joined then that party must be given a proper chance as a party to argue that the decision is wrong or, as it may be, to accept that the decision is right.  But it seems to us wrong to exclude him in effect from participating in part of a process which may affect his civil rights and obligations.  Accordingly we are satisfied that in this case, by the procedure the Tribunal adopted, a procedural injustice was done.  

9.	Part of the appeal before us embraces that very point. Paragraph 11 of the skeleton which Mr Andrews has provided argues that, by failing to address or raise the issues during the course of the hearing with regards to the claim against the PCC, the Tribunal erred in law by substituting Canon George Ansah as the employer rather than the PCC.  

10.	One may ask why it was a matter which inspired Mrs Nelson to appeal.  Surely it might be thought that the PCC and the Canon would have a community of interest?  We have been told that in subsequent developments the Canon has, having been made a party, submitted an ET3 in which he says he did not dismiss the Appellant.  Indeed one of the letters to which we have referred is open to the obvious interpretation that it was the PCC which did so.  Because therefore, there may not be quite the community of interest that their positions might suggest - the Canon being Chairman of the PCC - there is a practical point to Mrs Nelson pursuing this appeal.  

11.	Given our conclusion that the procedure was flawed, in that a decision was made which had repercussions, possibly upon the position of the PCC and most certainly upon the position of Canon Ansah, and arguably upon the position of the Claimant, we have no option but to allow this appeal and remit the case for determination.  

12.	Two issues then arise.  The first is as to the scope of the remission, the second as to whether it should be to a fresh Tribunal or not.  As to the latter point the parties are agreed in asking us to remit to a fresh Tribunal.  Both parties having been before the original Tribunal, we think it right to accede to that request, though we would otherwise have had every confidence that the Chairman and members and this Tribunal would deal with any remission in a proper and professional manner.  As for the scope of the remission it seems to us that there can be no argument that the Tribunal in its decision of 8 December was not entitled to determine the position so far as the project management work done by the Appellant was concerned.  That was a decision that Mrs Nelson was not an employee so far as that work went.  That, it seems to us, is a decision which must stand.  

13.	It is, as we see it, in reality likely to be a remission which will look at which of the Canon or the PCC is the employer of the Claimant.  However, because the Tribunal of December came to the conclusion, having heard some evidence, that there was no contract between Mrs Nelson and the PCC, and because it is plain from what Mr Alabi has submitted to us that that may well be an issue, at least for the Canon if not also for the PCC as before, it does not seem to us that we can simply invite a Tribunal to determine which of two given individuals was the employer.  Although it may seem unlikely that a Tribunal will conclude that Mrs Nelson was not an employee, given that she did work for money, paid at a pre-arranged rate (which was, we are told, paid to her by the PCC) we nonetheless think that it ought to be argued before the Tribunal.  Such is necessarily consistent with the decision to which we have come that the original Tribunal’s decision was procedurally flawed.  If it was flawed because Canon Ansah had no proper opportunity to argue the case so far as he was concerned, then the finding that there was no contract with the PCC is, it seems to us, open to be considered again.  Equally, the finding that she was an employee of Canon Ansah is open to be considered again.  In short the scope of the remission will be to consider whether Mrs Nelson was an employee of the PCC or Canon George Ansah or, as it may be, both or neither.  

14.	To that extent therefore, this appeal is allowed.  This judgment should not however finally conclude without saying this.  It is plain that the parties have spent a lot of time and effort and, it may be, invested some resources in arguing about issues which may, when they are finally analysed, involve little in terms of financial repercussions for either.  If that is so, and we do not of course seek in any sense to prejudge it, there is much to be said for the parties coming to terms in what otherwise appears to be an acrimonious dispute.