Seabridge & Anor v Construction Projects Training Ltd & Anor

On a second-tier appeal from the Employment Appeal Tribunal, the Court of Appeal is principally concerned with whether the Employment Tribunal reached the correct decision, rather than with identifying errors in the EAT’s reasoning.

An application to add a new respondent is distinct from correcting the name of an existing respondent. The tribunal must exercise its discretion by considering whether the proposed amendment corrects a genuine mistake and all the circumstances, including any injustice or hardship caused by allowing or refusing it. Delay and the absence of evidence that the proposed respondent was the employer may justify refusal. An employee’s secondment does not, without more, create an employment relationship with the secondee’s employer.

Mr Seabridge and Mr Gater brought Employment Tribunal claims alleging disability discrimination and unfair dismissal. They named several respondents, including Construction Projects Training Ltd and A R Trowers, but not South Birmingham College.

After it emerged that Construction Projects Training Ltd had no employees, the applicants sought to join the college as a respondent. The Employment Tribunal refused the application, relying on delay and the absence of evidence that the college was their employer. The Employment Appeal Tribunal dismissed their appeal, and the applicants sought permission to appeal to the Court of Appeal.

The central issues were the correct approach to adding a respondent and whether there was material supporting the college’s potential liability as employer.

1. Applications refused. Lord Justice Peter Gibson refused both applications for permission to appeal because the proposed appeals had no real prospect of success and there was no other compelling reason for them to proceed.
2. The applicants wrongly characterised the application as a change of name. They sought to add a distinct legal person as respondent. The relevant question was therefore whether the Employment Tribunal had properly exercised its discretion to permit joinder.
3. The principles in Cocking v Sandhurst (Stationer) Ltd [1974] ICR 650 required consideration of whether the mistake was genuine and of all the circumstances, including potential injustice or hardship. The Tribunal had not erred by applying a just and equitable test, particularly since that was the basis on which the application had been made.
4. The Tribunal was entitled to attach weight to the applicants’ delay. They knew of the relationship between Construction Projects Training Ltd and the college before proceedings began, but did not seek joinder until the issue concerning the minimum number of employees had arisen.
5. There was no documentary or other material showing that the college employed the applicants. The evidence indicated that Trowers made the dismissal decision. An employee of one company who is seconded to another acts on behalf of the latter company and does not thereby create an employment relationship between the secondee’s employer and the worker.
6. Milestone School of English Ltd v Leakey [1982] IRLR 3 was materially different. It concerned uncertainty about the true identity of the employer and unusual circumstances involving a settlement. Here, an acknowledged employer had always existed.
7. The Court reiterated the second-tier approach illustrated by Mensah v Hertfordshire NHS Trust [1998] IRLR 531: the focus is whether the Tribunal was correct in its decision.

• Court of Appeal (Civil Division): applications for permission to appeal refused.
• Employment Appeal Tribunal: appeal dismissed, with the EAT declining to interfere with the Employment Tribunal’s refusal to join South Birmingham College.
• Employment Tribunal: application to join South Birmingham College as an additional respondent refused.