United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD REES (Representative) Citizens Advice Bureau Employment Law Unit Acorn House 361 Midsummer Boulevard Central Milton Keynes MK9 3HP
For the Respondents	MR BRIAN HENDLEY (Representative) MHL Support Plc Brunswick Court Brunswick Street Newcastle-under-Lyme ST5 1HH


 


SUMMARY

PRACTICE AND PROCEDURE – Amendment

PRACTICE AND PROCEDURE – Parties

Claimant in discrimination claim stated in ET1 that she wished to join as respondent the individual manager responsible for the act complained of as well as the employer but did not know his surname – When his name was given in the ET3 she applied promptly to join him but the application was refused on the basis that she was out of time.

Held

Judge wrong to refuse application on that basis: Drinkwater Sabey v Burnett followed – Order made for joinder of manager.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. The Claimant was employed by the Respondent company until her resignation on 23 February 2010. She resigned because she did not believe that the Respondent had responded properly to a request made to her manager, Mr Aulakh, that she be moved to other duties because she had become pregnant and her current job involved working with materials which she had reason to believe might be harmful to her unborn baby.
2. She consulted Milton Keynes Citizen Advice Bureau (though not, it seems, straightaway) and with their assistance on 14 May she commenced proceedings in the Employment Tribunal, claiming that she had been unfairly constructively dismissed and also that she had been discriminated against on the grounds of her sex or pregnancy. In her ET1 she said this:

"Regarding the manager 'Harry' referred to at Section 5.2, I reserve the right to join him as a second Respondent in these proceedings once his full name is disclosed by the First respondent."

"Harry" was in fact Mr Aulakh.

3. In the ET3 Mr Aulakh's surname was given. Accordingly, on 16 August the Claimant made an application to the Tribunal for permission to join him. The application referred to the fact that she had expressed an intention in the ET1 to do so once she knew his name. The Respondent wrote to the Tribunal resisting that application.
4. On 7 September a letter was sent by the Employment Tribunal in the following terms:

"Thank you to both parties for their recent correspondence the contents of which has been noted.

Your case was referred to Employment Judge Bloom who has directed the following.

'Any claim against an additional Respondent is now out of time. The application is refused.'"

5. The Claimant sought a review of that decision. On 21 September the Tribunal wrote communicating a further decision of Judge Bloom as follows:

"The application for a review is refused. The interests of justice do not require a review. The claimant may, if she wishes, renew her application at the hearing. She should be prepared to provide detailed reasons for her application at that hearing."

6. What is before me is an appeal against both those decisions. The Claimant has been represented by Mr Rees of the Citizens Advice Bureau. The Respondent has been represented by Mr Hendley. Mr Aulakh was joined as a party to the appeal and was also represented by Mr Hendley. Both of them have made their written and oral submissions concisely and sensibly.
7. The primary point advanced by Mr Rees is that the reason given by the Judge in his original decision was simply wrong. He referred me to the decision of this Tribunal in Drinkwater Sabey Limited v Burnett [1995] IRLR 238, in which it was held that the fact that an application to join a further party was out of time was not an absolute bar but was simply a matter to be taken into account as a matter of discretion. That decision is, it seems to me, plainly right and is in accordance with other more recent decisions on the question of adding fresh causes of action (see in particular Transport and General Workers Union v Safeways Stores Limited UKEAT/0092/07). Mr Hendley sensibly concedes that it follows that the Judge was wrong in law to refuse the application on the ground that he did.
8. Mr Rees further submits that the review decision was wrong, both because the Claimant was denied the opportunity to argue her grounds for the application but also in any event because it was unsatisfactory that the parties should not know where they stood prior to the start of the hearing. In view of my decision on the substantive point, I need not reach a final view on this; but there seems to me to be considerable force in the point that the Claimant was entitled to have a question of this kind decided in advance of the hearing.
9. In those circumstances both parties were content that I should decide the joinder application myself. Mr Rees submits that the application should be allowed. He says that it is common practice in a discrimination claim to include as respondents not only the employer but also the individual said to be responsible for the act complained of, and that it is prudent to do so in case a point is taken that the employer is not responsible for the acts of the individual in question or in case the employer becomes insolvent. Mr Aulakh will be inevitably a witness in any event and in reality no extra cost will be incurred for anyone in joining him. The overwhelming likelihood must be, as Mr Hendley accepted, that Mr Aulakh will simply allow the case to be handled on his behalf by the company. Mr Rees makes the point that the intention to join Mr Aulakh had always been made clear and it was only the lack of information about his surname which prevented it being done from the start.
10. Mr Hendley sought to persuade me that the claim was in truth hopeless because the company had established authoritatively that there was no risk to pregnant women from the materials which the Claimant was working with and that she had jumped the gun by submitting her resignation precipitately before that could be explained to her. He said that these points have been made in correspondence to the Claimant but that no response has been received. There may or may not be force in those points. I would certainly urge Mr Rees, if he has not done so, to give them careful consideration in any further advice that he gives the Claimant. But the present hearing does not seem to be a sensible stage for me to decide that question. I do not have the materials with which to do so definitively, and in any event the claim against the company will proceed and excluding Mr Aulakh as a party will not prevent that happening.
11. Beyond that, Mr Hendley's only point was that nothing would in practice be gained by joining Mr Aulakh. There was no reason whatever to believe that he had any substantial means himself.
12. Although Mr Rees is, in my experience, right in saying that claimants in discrimination cases very often join both the employer and the individual responsible for the acts complained of, there is no universal practice to that effect, and I would be sorry if it were to be treated as automatically the right thing to do. In many cases it will simply add to the complication and stress generated by the litigation. Nevertheless, the fact does remain that if Mr Aulakh did act unlawfully towards the Claimant she has a legal right to bring proceedings against him, and her reasons for not doing so in the original ET1 are understandable. She made her position plain from the start and acted promptly as soon as she had the necessary information. No possible prejudice can have been done, so far as I can see, by the delay in formally joining him. That being so, I can see no sufficient reason to refuse the application. In truth, as I have already observed, the overwhelming likelihood is that Mr Aulakh will simply come in under the umbrella of the company, for whom he would have been giving evidence in any event, and on the facts of this particular case no additional difficulties will be caused.
13. For those reasons I allow the appeal and make an order that Mr Harry Aulakh be joined as Second Respondent to these proceedings on the basis of the allegations already pleaded against him in the ET1.

[NOTE: When this Judgment was delivered orally I made an observation to the effect that since Mr Aulakh was not a party to this appeal he would formally have the right to apply to the Employment Judge to have the order against him set aside, though I discouraged him from taking that course. That was in error. As I have now noted at para. 6 Mr Aulakh was joined in this appeal, submitted a Respondent's Answer and was represented by Mr Hendley.]