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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Downing (t/a Downing Private Nursing Homes) v McAllister [2009] UKEAT 0040_08_0801 (8 January 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0040_08_0801.html Cite as: [2009] UKEAT 0040_08_0801, [2009] UKEAT 40_8_801 |
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At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
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
"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"
"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"
CASE MANAGEMENT DISCUSSION OF 14 DECEMBER 2007
"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
"(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)."
"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 ….."
"….. 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 …. ."
"….. 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."
THE APPEAL
DISCUSSION
Disposal