On Appeal

Employment Law – Application for Third Party to Join Proceedings – Procedural Error – Unfair and Wrongful Dismissal – Failure to Comply with Statutory Grievance and Disciplinary Procedures – Whether an Employee or Independent Contractor

In the case of Tilson v Alstom Transport [2007] the Employment Appeals Tribunal had to determine whether an employment tribunal adopted the correct procedure in considering whether a third party should be allowed to join ongoing proceedings. The claimant in this case made his originating application complaining of unfair and wrongful dismissal by the respondent company. In addition, he alleged a failure by the respondent company to comply with the statutory grievance and disciplinary procedures.

The respondent argued that the claimant had been engaged as an independent contractor and therefore could not have been considered its employee at any material time.

When the case was first heard, the employment tribunal identified the preliminary issue which had to be determined as the employment status of the employee. Without hearing evidence on the issue, the chairman refused an application made by the respondent to allow a third party to join the proceedings.

The chairman subsequently gave written reasons for dismissing the application. He stated that there had been no basis for adding a third party as none of the parties had any mutual obligations with the claimant.

The respondent appealed to the Employment Appeals Tribunal against this decision.

§             It contended that the chairman had not applied the law correctly and had therefore misdirected himself. Alternatively, the respondent argued that he had exercised his discretion upon wrong principles of law.

§             Furthermore, with regards to the written reasons given for the rejection of the application, the respondent argued that the chairman had not conducted the hearing fairly and as such there was a real possibility that the issue had been pre-determined.

The appeal was allowed by the Employment Appeals Tribunal on the following basis:

§             The employment tribunal had wide powers to conduct hearings in such a manner as the chairman thought most appropriate. The reasons these powers were given to the chairman were:

o       to allow for the clarification of any issues which required it; and

o       to allow for the just and fair handling of any proceedings brought.

§             The chairman's decision had been based on considerations that had not been advanced by either party. This meant that neither party had had an appropriate opportunity to address those considerations.

§             Furthermore, it was held that in giving his conclusion on the respondent's application, the chairman had virtually determined the very issue identified for the pre-hearing review. However, this was done in circumstances where a fair-minded and informed observer would have taken the view that the chairman had pre-determined the outcome of the adjourned pre-hearing review.

Accordingly, the matter had to be reconsidered by a fresh tribunal, where the application to have a third party join the proceedings could be considered properly.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.