Koyama v Lindley & Anor

Yet again there is no one appearing here in the court room, I will ask the usher to go and call it outside. While she does that, I will again check with the associate that no message has been received from the applicant; and, as I have said before, I am satisfied that the applicant has been notified of today’s hearing. It is now 2.15 pm. This case was set down for hearing today, not before 2 pm. In the absence, without explanation, of the applicant, I propose to deal with this matter, as I said I would, in his absence.

This is a renewed application for permission to appeal from the Employment Appeal Tribunal (“the EAT”), permission having been refused on the papers by Sir Henry Brooke. The EAT decision in question is one made by Silber J on 18 July 2007, under the procedures set out in Rule 3(10) of the EAT Rules 1993. Silber J held that the Notice of Appeal to the EAT did not disclose reasonable grounds for bringing the appeal, see Rule 3(7).

The applicant was seeking to appeal to the EAT against the decision of an employment tribunal sitting at Manchester and dated 18 May 2007, whereby that tribunal had dismissed his claims under Rule 10(2)(l) of the Employment Tribunal Rules of Procedure 2004 and/or struck them out under Rule 18(7)(b) of those rules. I note that Rule 10(2)(l) empowers an employment tribunal to dismiss a claim against a respondent “who is no longer directly interested in the claim”. Rule 18(7)(b) empowers it to strike out a claim on various grounds, one of which is that the claim has no reasonable prospect of success.

The claim here was brought by the applicant against Ms Lindley and Mr McCourt on the basis that they, as his employer, had discriminated against him in breach of the Employment Equality (Age) Regulations 2006 (“the 2006 regulations”) and/or had made unauthorised deductions from his wages. There seems to be no doubt that the respondents were sued as the applicant’s alleged employers since his complaint was largely that what was discriminatory was his eventual dismissal from his employment. Ms Lindley was a director of a company called OLED Ltd, which had a franchise to run a Macdonalds restaurant in Stretford, Manchester. The applicant began his employment with OLED Ltd in November 2006. On 3 February 2007 he was dismissed by OLED Ltd following an unsatisfactory probationary review meeting. On 4 February 2007 a transfer of undertaking took place between OLED Ltd and Macdonalds Restaurants Ltd (“Macdonalds Ltd”) in relation to a transfer of the Stretford Restaurant. OLED Ltd was wound up on 13 March 2007 by reason of a voluntary creditor’s liquidation. Silber J held that it was clear that the applicant’s employer was the company and I can see no basis for doubting that. Mr McCourt is a human resources manager employed by Macdonalds Ltd.

The employment tribunal sent the applicant a letter asking him whether he wished to have the names of the respondents changed, so that the name OLED Ltd would replace the name of Ms Lindley and the name of Macdonalds Ltd would replace the name of Mr McCourt. In fact, the applicant objected to both of these amendments being made. However, the tribunal took the view that Mr Koyama’s employer had been OLED Ltd and, if there had been a transfer of undertaking, it would then have been to Macdonalds. Consequently, it held that neither named respondent was a proper respondent to the claim, and it therefore dismissed the claim against them. In so doing, the tribunal noted that a claim could be brought against a person who knowingly aided another person to do an act made unlawful by the 2006 regulations. That is the consequence of regulation 26. However, the tribunal found that the applicant had not sought to bring his claim on that basis. It went on to consider whether it should exercise its power under Rule 10(2)(k) of the rules to make OLED Ltd and/or Macdonalds respondents to the claim. However, it decided at paragraph 10 that that would be inappropriate, given the applicant’s objection to such a course being taken. It added that it was also satisfied that, even against the companies, the claim would not have had a reasonable prospect of success. But Silber J subsequently held that that was merely a “long-stop” position and that the critical finding was that the respondents were the wrong parties. He found no error of law in the employment tribunal’s decision.

Mr Koyama, in his written material, now seeks to challenge that. Though his grounds as set out are lengthy, I think they can be summarised rather more briefly. First of all, he contends that Ms Lindley was his employer. It seems to me that that argument cannot succeed -- all the evidence points to him being or having been an employee of OLED Ltd. It is also argued that Mr McCourt was the decision-maker at Macdonalds and that he was therefore an appropriate respondent. I disagree: Mr McCourt, whatever his role, was an employee of Macdonalds. He was not an appropriate respondent to this claim. Mr Koyama next says that he did not understand the implications of his objection to the substitution of the companies as respondents. That proposition is difficult to accept. In her ET3 response to the claim, Ms Lindley said in terms that OLED Ltd was the employer and should be the first respondent, not her. The applicant knew that, but it is clear from the letter from him dated 2 April 2007 that he did not wish to claim against OLED Ltd because it was in liquidation (see page 328 of the bundle). He said in terms that the company “would have no capacity to meet any liability”.

That, if I may say so, is a perfectly rational reason for objecting to the company being substituted. But, given his objection to the companies being substituted, it seems to me that the employment tribunal’s decision not to do so cannot be said to be wrong in law. There is some suggestion in the papers that the Court of Appeal should now substitute the companies as the appropriate respondents. That is not an argument which can succeed: the Court of Appeal can only act if the EAT has erred in law. So far as I can see, it has not done so, even arguably.

Finally, Mr Koyama argues in his written material that the employment tribunal was wrong to find that his claims -- had they been brought against the right respondents -- had no reasonable prospect of success. Again, I am afraid that this argument by itself is doomed to failure. The employment tribunal’s finding on this was a subsidiary point which only arose if the companies had been substituted as respondents. They were not; and it follows that nothing turns on this aspect of the case.

Looking at the matter in the round, I find myself in total agreement with Sir Henry Brooke and his written reasons for refusing permission to appeal on the documents. This claim has no real chance of success were it to go to the full court and, that being so, this renewed application must be dismissed.