Langton v Secretary of State for Health

Where a public body is dissolved and a successor or responsible authority is substituted as respondent, the substituted party stands in the original respondent’s shoes for the purposes of the litigation. That includes potential liability arising from an application for interim relief in an automatically unfair dismissal claim.

An interim relief application under sections 128–130 of the Employment Rights Act 1996 is not barred merely because the original employer no longer exists or the substituted respondent was never the claimant’s contractual employer. The tribunal must determine the statutory likelihood question and, if appropriate, may make a continuation order against the substituted respondent.

The claimant had brought whistleblowing and victimisation claims against Devon Primary Care Trust. She was dismissed shortly before the Trust was dissolved under NHS reforms and then presented a claim alleging automatically unfair dismissal under section 103A of the Employment Rights Act 1996, together with an application for interim relief.

At the respondent’s request, the Secretary of State for Health was substituted for the dissolved Trust under rule 10(2)(k) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Employment Tribunal held that it had no jurisdiction to entertain the interim relief application because the Secretary of State had never been the claimant’s employer. The issue on appeal was whether substitution prevented the tribunal from making a continuation order.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside, and the interim relief application was remitted to a different Employment Judge for determination on its merits.
2. The effect of the Secretary of State’s substitution for the dissolved Trust was that he stood in the Trust’s shoes for all purposes in the litigation. The substitution was proper under rule 10(2)(k) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Section 70 of the National Health Service Act 2006 required the Secretary of State to secure that the Trust’s civil liabilities were dealt with.
3. The claimant was an employee who had presented a complaint of automatically unfair dismissal under section 103A of the Employment Rights Act 1996. She was therefore entitled to apply for interim relief under section 128(1). On the hearing of that application, the tribunal had to consider whether it appeared likely that the claimant would succeed at the final hearing, as required by section 129(1).
4. A continuation order under section 129 did not create a new contract of employment. As explained in Dowling v ME Ilic Haulage [2004] ICR 1176, it preserved rights to pay and other employment benefits under the terminated contract and dealt, where necessary, with continuity of employment under section 130.
5. Nothing in sections 128–130 prevented a continuation order being made against a substituted respondent who was not the original contractual employer. The Secretary of State had chosen to defend the unfair dismissal claim and accepted potential liability if it succeeded. The interim relief application therefore fell within the tribunal’s jurisdiction.

• Employment Tribunal: Employment Judge Cresswell declined jurisdiction to hear the interim relief application in a judgment promulgated on 23 May 2013. A review application was summarily rejected on 3 June 2013.
• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal’s judgment and remitted the application to a different Employment Judge for hearing on its merits.