United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant (EAT/0984/02)	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Appellant (EAT/0985/02)	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


HIS HONOUR JUDGE PROPHET

1. An Employment Tribunal sitting at Birmingham under the chairmanship of Mr D Kersley on 17 June and 24 July 2002 and subsequently in respect of remedy on 29 August 2002, held that Mr Shah was the subject of unlawful race discrimination by both the named Respondents, i.e. Redditch Council for Voluntary Service and Mr R Rainbow. Compensation was awarded against the Council but no separate award was made against Mr Rainbow. A further claim against both Respondents was dismissed.
2. We have before us today two appeals which have been set down for ex parte Preliminary Hearings and which we have taken together. No-one has appeared today in respect of either of these appeals and we have decided to proceed on the papers.
3. The first appeal is that of Mr Rainbow, by which he asserts in his Skeleton Argument that there could be no personal liability on his part, for the race discrimination which the Tribunal found. He says that that is reinforced by there being no award of compensation against him, as compared with the award made against the other Respondent, i.e. the Council.
4. We can deal with that appeal shortly. From the clear judgment of the first decision of the Employment Tribunal it is apparent that there was evidence by which personal liability on Mr Rainbow's point could be established. The reason no separate award was made against him was because the Tribunal decided that he would be one of the trustees who would become liable in respect of the finding against the Council. Consequently, that appeal is dismissed at this stage, there being no point of law which could go forward to a full Tribunal.
5. That brings us to the second appeal, which is somewhat unusual in that it is by unnamed persons who, essentially, dispute their liability on behalf of the Redditch Council for Voluntary Service.
6. Whilst we appreciate that there was some difficulty for the Employment Tribunal in that there was no representation on behalf of the Council at the Employment Tribunal hearings the Council appears to be an unincorporated association. From the second decision of the Employment Tribunal it is apparent the Employment Tribunal was aware that the Council had been disbanded prior to the first of its hearings. It was, therefore, incumbent upon them to establish the correct legal title of the first Respondent for the purposes of the award which they made.
7. It seems, on the face of it, that the correct legal title would either be the Trustees or the Members of the Management Council for the time being. See for example Affleck & Others v Newcastle Mind & Others [1999] IRLR 405.
8. To clear this matter up we believe that this could best be achieved by the Employment Tribunal holding an out of time review of its own motion and we would therefore encourage the Employment Tribunal, perhaps with the assistance of the Regional Chairman in the Birmingham Region, to take that course.
9. We will, therefore, suspend for three months any further action on our part in the hope that that can be done, since that should resolve the matter on whom liability for the award should fall.
10. If, therefore, the Employment Tribunal could advise us in due course that the matter has been resolved in this way then reference can be made back to myself on behalf of this Tribunal for a formal order of the dismissal of this appeal. Otherwise, however, the matter will inevitably have to go forward for a full hearing before the Employment Appeal Tribunal.