Employment Appeal Tribunal
An employment tribunal could make an interim order for continuation of a contract of employment against the Secretary of State for Health where he had been substituted as the respondent in place of a dissolved NHS Trust and stood in its shoes for all purposes in the litigation.
The appellant NHS employee (L) appealed against an employment tribunal's refusal to hear an interim application in relation to an unfair dismissal claim against the respondent secretary of state who had been substituted in the proceedings for a dissolved NHS Trust.
L had worked for the trust but was dismissed shortly before it was dissolved by the secretary of state. L brought a claim for unfair dismissal against the trust and included an application for interim relief. The secretary of state then successfully applied to substitute himself for the trust and entered an appearance to the complaint. In declining to hear L's interim application the employment tribunal found that an order for continuation of her contract of employment could not be made where the employer no longer existed and the secretary of state had never been L's employer.
HELD: The secretary of state was substituted for the trust and therefore stood in its shoes for all purposes in the litigation. He was statutorily obliged by the National Health Service Act 2006 s.70 to ensure that all of the trust's civil liabilities were dealt with: a responsibility which flowed from his dissolution of it. He had been correctly substituted and was entitled to take a full part in the proceedings and defend L's claim, liability for which would fall on him. The interim relief application did not fall outside his potential liability. Nothing prevented the tribunal from making a continuation order against a party who had substituted himself for the original respondent. Such an order did not create a new contract of employment, it would have simply preserved L's right to pay and benefits enjoyed under the terminated contract and was relevant to the question of continuity of employment, Dowling v Ilic (t/a ME Ilic Haulage) [2004] I.C.R. 1176 considered. The refusal to accept jurisdiction was therefore set aside and the interim relief application was remitted to a different employment judge (see paras 15-18 of judgment).
Appeal allowed.
LTL 7/11/2013
