Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 64/08 FET

585/08 IT

CLAIMANT: Steven Harris

RESPONDENT: 1. Ms Kirsty Law

2. Mr Martin McCleary

3. Gist Limited

DECISION ON A PRE-HEARING REVIEW

The Tribunal determines that the joinder of Gist Limited as a third respondent in these proceedings made on 26 June 2008 should not be set aside and the case may continue on that basis.

Constitution of Tribunal:

Chairman (sitting alone): Mr J V Leonard

Appearances:

The claimant was represented by Mr J Dowey, Barrister at Law, instructed by Bernard Campbell & Co, Solicitors.

The respondents were represented by Mr Keith Gibson, Barrister at Law, instructed by DLA Piper Scotland LLP.

Introduction

1. At a case management discussion held on 12 August 2008 it had been agreed that a pre-hearing review would be convened to deal with the following issue:

"Whether the joinder of Gist Limited as a third respondent in these proceedings made on 26 June 2008 should be set aside".

2. The claimant's claim was presented to the Tribunal on 8 April 2008 and expressly named the first and second respondents as respondents to the claim which was of unlawful discrimination on grounds of race and religious belief.
3. A response was received by the Tribunal on 4 June 2008, following which a Chairman of the Tribunal made an order dated 26 June 2008 joining the third-named respondent, Gist Limited, as a respondent to these proceedings.

The Submissions

4. Mr Gibson, for the third-named respondent, submitted that it had been the responsibility of the claimant clearly to set out his case in his claim form against any respondents in respect of which or whom unlawful discrimination was alleged. Whilst the third-named respondent did accept that the first and second-named respondents were employees of the third-named respondent, nonetheless the claim form did not make any specific allegation against the third-named respondent but rather against the first and the second-named respondents. Accordingly the joinder of the third-named respondent after the response had been received was irregular and ought to be set aside by this Tribunal. Whilst the Tribunal did indeed have a wide measure of discretion in these matters, that discretion should be properly exercised in favour of removing the third- named respondent as a party to the proceedings.
5. For the claimant, Mr Dowey invited the Tribunal to have regard to the claim form. That claim form clearly identified the third-named respondent, there called "Gist Lindi Group" in paragraph 2.2 (at "address of respondent"). Further, at paragraph 2.5 Ms Law and Mr McCleary, respectively the first and second-named respondents, were described as being "c/o Gist Lindy Group". In addition to this in paragraph 7.4 of the claim form there were a number of clear references to the third-named respondent. That much was indeed acknowledged by the respondents' representatives in the response form where the name of the organisation and contact details all referred to "Gist Limited" (at paragraphs 1.1 and 1.3) and in the typed addendum to the response the first and second named respondents were described as being "c/o Gist Limited". Further to that, there was also correspondence from the respondents' representatives indicating that they acted on behalf of the third-named respondent. All this was an express recognition on the part of the third-named respondent that it had been joined as a party to the proceedings expressly by the claimant. There could be no doubt about that, so it was submitted.

The Tribunal's Determination

6. Having heard and considered the submissions of the respective representatives, the Tribunal has noted the respective provisions of Article 32 of the Race Relations (Northern Ireland) Order 1997 and of Article 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998, these two statutes bearing upon the claimant's claims. These respective Articles constitute the provisions in respect of the liability of employers and principals. Identical language is used in both of these Articles, as follows:-

"Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval".

7. Further to the foregoing, when the Tribunal examines the content of the claimant's claim form and of the response thereto, even if there were not the statutory basis providing for the connection between employee and employer as mentioned above in these statutes, the Tribunal would nonetheless have taken the view that the claimant had expressly included within his claim form sufficient material to indicate a clear intention to join the third-named respondent as a party to these proceedings.

8. That being the case, the earlier decision of the Chairman of the Tribunals to join the third-named respondent, Gist Limited, as a party to the proceedings was correctly made and should not be set aside by this Tribunal. In answer therefore to the issue requiring to be determined, the Tribunal determines that the joinder of Gist Limited as a third respondent in these proceedings made on 26 June 2008 should not be set aside and the case may continue on that basis.

Chairman:

Date and place of hearing: Monday 1 September 2008, Belfast

Date decision recorded in register and issued to parties: