Shaw v The Cedar Tree Hotel & Ors

Where a response has been struck out for non-compliance with an unless order, an Employment Tribunal must give reasons before revoking that order. A later uncertainty over the respondent’s name does not itself justify restoring the response.

A genuine misnomer may instead be corrected by amendment and substitution of the intended legal respondent, including after judgment. The tribunal must be satisfied that the error was genuine, that the intended party’s identity was not reasonably doubtful, and that amendment causes no material injustice or hardship. The original strike-out remains effective against the correctly substituted respondent.

The Claimant obtained an award for unfair dismissal and unlawful deductions from wages after the response, submitted in the name of the Cedar Tree Hotel, had been struck out for failure to comply with an unless order. The hotel was not a legal entity.

On review, Employment Judge Crump revoked the earlier judgment and permitted the claim to proceed against ST6 Ltd and Sutton Grosvenor Ltd, without giving reasons for restoring the response. A later preliminary hearing determined that Sutton Grosvenor Ltd was the employer.

The Claimant appealed. The central issue was whether the review judgment should have revoked the strike-out, or whether the proceedings should instead have been amended to substitute the correct respondent while preserving the strike-out.

1. Appeal allowed. The Employment Judge erred in law by revoking the earlier order without giving reasons. Rule 30 required reasons, and none were provided for accepting a response on behalf of Sutton Grosvenor Ltd after the response had been struck out.

2. There was also no material before the Employment Judge capable of displacing the earlier unless order and the consequential strike-out. The company’s lack of funds to instruct solicitors did not excuse its non-compliance with Tribunal orders.

3. The proper procedural course was amendment, rather than revocation. Applying Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, the error in naming the Cedar Tree Hotel was a genuine misnomer. Sutton Grosvenor Ltd was throughout the intended and correct respondent. There was no reasonable doubt about its identity and no injustice in correcting the name.

4. Applying Watts v Seven Kings Motor Co Ltd [1983] ICR 135, substitution of the true employer could be made after judgment where proceedings had been commenced in time against a wrongly named entity but plainly intended the true respondent.

5. The effective amendment substituting Sutton Grosvenor Ltd was preserved. The orders striking out the response also remained in force against it, and the original judgment was restored against Sutton Grosvenor Ltd.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and restored the strike-out against Sutton Grosvenor Ltd.
• Employment Tribunal: Employment Judge Crump, on review, revoked the earlier judgment and joined ST6 Ltd and Sutton Grosvenor Ltd. Employment Judge Camp later determined that Sutton Grosvenor Ltd was the respondent.
• Employment Tribunal: The response had previously been struck out following non-compliance with an unless order, after which an award was made for unfair dismissal and unlawful deductions from wages.