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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> de Than v Institute of Law and Others 08-Apr-2021 [2021] JRC 098 (08 April 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_098.html Cite as: [2021] JRC 98, [2021] JRC 098 |
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Employment - application for leave to appeal the interlocutory judgment dated 1st October 2020
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Before : |
J. A. Clyde-Smith O.B.E., Commissioner |
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Between |
Professor Claire de Than |
Applicant |
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And |
Institute of Law and Others |
Respondent |
The Applicant appeared in person.
Advocate V. S. Milner for the Respondent.
judgment
the COMMISSIONER:
1. The Applicant applies for leave to appeal certain of the findings of Advocate Ian Jones, Deputy Chairman of the Employment and Discrimination Tribunal ("the Tribunal"), in his interlocutory judgment of 1st October 2020 ("the Interlocutory Judgment").
2. The Respondent is a charity incorporated under the Loi (1862) sur les teneures en fidéicommis et l'incorporation d'associations as a maison d'education. Under its constitution its business and property is controlled and managed by its Governing Body, which inter alia has the power to employ and remove staff of the Respondent from office.
3. The Applicant was employed by the Respondent as the director of studies. By letter dated 22nd February 2019, the Respondent gave the Applicant six months' notice of the termination of her employment so that it terminated in or around 22nd August 2019.
4. On 15th October 2019, the Applicant filed the first of three claims with the Tribunal ("Claim 203/19").
5. Under Section 2.1 of the claim form, she named the Respondent as the person against whom she was making the claim. Under section 2.6 she named Advocate Stephen Baker as an additional respondent "representing the Governing Body". Advocate Stephen Baker is and was the Chairman of the Governing Body at the material time.
6. Under Section 4, the type of claim, there were two work related discrimination claims, because of her sex and disability, and four work related claims for unfair dismissal, holiday pay, no payslips and breach of contract.
7. Under Section 9, the details of the claim, the Applicant set out the heads of claim and the narrative. Under the narrative, she said that she was asked to attend a meeting with Advocate Baker and Paul Marett, another member of the Governing body, which took place on 9th January 2019. Quoting from the narrative:
"Stephen Baker gave me a copy of the Report of the December 2018 review of the Institute of Law, but did not give me any opportunity to read it or to respond to it. Instead he pointed me at a sentence in it which paraphrased that the Dean, David Marrani, had stated that his relationship with me had broken down since he took on his new role. Stephen then said that in the view of the Governors this 'breakdown of relationship' was 'irretrievable' (without any evidence being provided of this), that the Governors had decided that one of us must leave, and that they had chosen me. I protested that I could prove that this 'irretrievable breakdown' was not true and that I was being scapegoated, and stated that what was taking place was very far from a fair procedure. Stephen then demanded my keys to the Institute of Law and my Institute of Law credit card, and informed me that my access to email and social media was being removed before I was told to leave the building."
8. In relation to the discrimination claim, she said that the Governors must have made their decision either with at least indirect discrimination or arbitrarily:
"Given the circumstances (e.g. an all-male Governing body favouring a male employee with no disabilities over a female one who, to their knowledge, had at least one disability, having already held at least one management meeting in a men-only Club) and the complete absence of a fair procedure, this is a prima facie case of discrimination."
9. Throughout this section, she refers consistently to the Governors or the Governors as represented by Advocate Baker or to the Governing Body, but she makes no claim against any individual Governor.
10. Under Section 10.1, the Applicant stated that she was seeking either reinstatement or re-engagement with the Respondent should her claim be successful. Under Section 10.3, the Applicant claimed £20,000 for discrimination in relation to her dismissal, being £10,000 in relation to each relevant protected characteristic (sex and disability).
11. Under Section 14, additional respondents, the Applicant named "All Governors" and under Section 15, additional information, gave this explanation:
"There are, as far as I am able to determine, still 6 Governors of the [Respondent]; the defendants for this claim are the Governors during the relevant time period. It is possible that some members have been replaced since January 2019, so I have named the Chairman of the Governing Body, Stephen Baker, as defendant since he represents the employer and the other Governors when he acts on their behalf. This form does not contain sufficient spaces to add the details of the other Governors, but the Institute will of course have their contact details."
12. The Applicant was ordered to file further and better particulars of this claim, in particular to clarify whether the claims were for direct or indirect discrimination. She filed those particulars on 4th February 2020, and they purported to introduce a number of new discrimination claims out of time. The particulars state that the Governors are agents within the meaning of Article 33 of the Discrimination (Jersey) Law 2013 ("the 2013 Discrimination Law") and that the Respondent is liable for the acts of its agents. Under the heading "Who is said to have committed the act/omission" she names the Respondent and the Governors, save in two cases.
13. The first relates to a decision of the Governors that the Applicant needed to sign a "medical records and information disclosure consent form" before she could return to work. Those named as committing this act are the Respondent, Advocate Baker and "the other Governors involved in the decision-making process". The second relates to the decision to dismiss the Applicant and the failure to consider her position during the notice period. Again, those named as committing these acts are the Respondent, Advocate Baker and "the other Governors involved in the decision-making process". These particulars have to be read in the context of and constrained by Advocate Baker being named in the claim form as a respondent in a representative capacity only, not in his personal capacity.
14. The Respondent and Advocate Baker (in his capacity as Chairman of Governing Body and for and on behalf of the Governors) filed a written response on 6th November 2019, amended on 14th February 2020, in which they stated, inter alia:
(i) That the Applicant's employment was terminated because of the fundamental breakdown in the relationship between the Dean of the Respondent and her, as well as breakdowns in the relationships between the Applicant and others. The working relationship between the Applicant and the Dean was key to the successful running of the Respondent, which had a small regular staff of four employees, including one part-time employee and one consultant. Relationships within the team had deteriorated over a period of time. The work of the Dean was crucial to the long-term financial wellbeing of the Respondent and the breakdown in working relationships forced the Respondent, through the Governing Body, to choose between the Dean and the Applicant, as the Dean had refused to work with her and refused to participate in mediation. In the light of this, the Respondent took the very difficult decision to terminate the Applicant's employment.
(ii) That the discrimination claim is related expressly to the Applicant's dismissal, and can only be brought against the Respondent, as the former employer, as it is only an employer who can dismiss someone.
(iii) The Respondent acts through the Governing Body and the claims against Advocate Baker and/or any individual Governor were untenable.
(iv) The sex and disability of the Applicant were not factors in the decision to terminate her employment.
(v) The Respondent had made an open offer of 26 weeks' pay in settlement of the claims, which had been refused.
(vi) Without admission of liability, the Respondent would not defend the unfair dismissal claim.
15. The Applicant filed a second claim on 11th March 2020 ("Claim 44/20").
16. Under section 2.1 the Respondent was named as the person against whom she was making the claim. Under section 2.6 she named "Stephen Baker (representing the Governing Body) and in his personal capacity" as the second respondent. A third Respondent was named, namely Dave Garland (Director of Finance and a member of the Governing Body). Under Section 3 she stated that this claim flowed from the related Claim 203/19. Under Section 4, the type of claim, there were work related discrimination claims for sex and disability and there was a work-related claim for redundancy. Under Section 5 and the question "When did the last act of discrimination occur?" the Applicant stated "ongoing - victimisation". In Section 9, details of claim, the Applicant asserted that her dismissal had been one of "disguised redundancy" and she claimed a failure on the part of the respondents to comply with the laws concerning redundancy. She alleged victimisation on the part of the respondents because of her sex and disability and this in connection with its rejection of her for a role in the Respondent advertised in February 2020. Under Section 10 she sought reinstatement or re-engagement if her claim was successful and an additional sum of £10,000 for discrimination. Under Section 14 she named a Carl Howarth (a member of the Governing Body) as a fourth respondent and she named as the fifth respondent, the "remaining members of short-listing Panel for the Director position (if any)". She said she had not been informed who was involved in the short-listing for the advertised post although Dave Garland and Carl Howarth were, she asserted, clearly involved in the process. Under Section 15 she said she would be applying for this claim to be conjoined, either concurrently or consecutively, with Claim 203/19. She attached a chart, and under the heading "Who is said to have committed the act/omission" she stated: "the Institute and any Governors who authorised the rejection of my application." Under the same heading there is no reference to any named Governor.
17. In their written response of 31st March 2020, the named respondents denied these claims, stating that the Applicant's job application was rejected because it was insufficiently strong to make the short-list. The correct respondent was the Respondent as prospective employer and because it was the Respondent that rejected her application. This was not an allegation that an individual involved in the selection process acted out with the role assigned to the person in question by the Respondent. The Respondent stood by the steps taken by each of those involved in the selection process.
18. On 5th August 2020, the Applicant filed a third claim ("Claim 130/20").
19. Under Section 2.1, the Applicant named the Respondent "and its current Governors" as the persons against whom she was making the claim. Under Section 2.6, she named as a second respondent "Stephen Baker (representing the Governing Body) and in his personal capacity". She named Advocate Fraser Robertson, a Governor, as the third respondent. Under Section 3, she said this claim also flowed from the related Claims 203/19 and 44/20. Under Section 4, the type of claim, there were claims for work related discrimination, because of her sex and disability, and in relation to work related claims, she referred back to Claims 203/19 and 44/20. Under Section 5, she said the last act of discrimination occurred on 10th June 2020. Section 9, the details of the claim, was left blank. Under Section 10, she claimed reinstatement or re-engagement and compensation if the claim was successful and was seeking an additional £20,000 in relation to discrimination. Under Section 14, she named as the fourth respondent "any other Governors of the [Respondent] involved in the relevant decision" and she named as fifth respondent another Governor Amy Wilson, solicitor. She attached a chart in which she asserted that the Respondent had placed two advertisements to recruit one or more assistant professor/associate professor of law in early June 2020. She applied for such a position and was informed on 10th June 2020 that the Governors had decided not to recruit after all because of the continuing uncertainty caused by Covid-19, an explanation she asserted was implausible. This was alleged to be an act of victimisation for which the Respondent and any Governors who authorised the decision to cancel the recruitment process were responsible. There is no reference in the chart to the actions of any named Governor.
20. In their written response of 24th August 2020, the named respondents stated, inter alia:
(i) That the decision not to proceed with the recruitment was taken as a result of Covid-19 by Advocate Baker as Chairman on behalf of the Governing Body on the advice of the Director and Chief Executive of the Respondent and no other Governor had any input into that decision which needed to be actioned swiftly.
(ii) The claim as a whole was misconceived as it had been lodged on the basis of an incorrect assumption that the decision not to proceed with the recruitment stemmed from the Applicant's application for the role in question, which was simply not the case.
(iii) The claim had no reasonable prospect of success, but if it was to proceed then it should be against the Respondent alone.
(iv) They denied that any of the parties named as respondents discriminated against the claimant and victimising her on the grounds of her sex and and/or disability.
21. On 12th August 2020, the Respondent lodged with the Tribunal a report from the Director and Chief Executive of the Respondent dated 7th August 2020. In it she explains that on 8th June 2020, she had informed Advocate Baker that it might not be prudent to proceed with the appointment of the academic staff because of the change to the financial position for 2020/2021 and the decrease in student numbers. Because of the uncertainty surrounding the Covid-19 pandemic eight applications had been received, but the names of the applicants and their personal details were not shared at any point with either Advocate Baker or Amy Wilson, who had been nominated by the Governing Body to assist with the recruitment process. The exchange of e-mails between her and Advocate Baker were set out in the report, which show him accepting her assessment that given what was known on student numbers for the next academic year, the Respondent should not recruit. All of the applicants were written to in the same terms explaining the decision.
22. Following a case management meeting on 13th January 2020, a case management hearing took place on 22nd September 2020 before the Deputy Chairman. In the Interlocutory Judgment, issued on 1st October 2020, he noted that the case already had a long and somewhat complicated history due in part to the Covid-19 pandemic and the Applicant's health difficulties, but he said this at paragraph 2:
23. There were a number of issues between the parties which needed to be decided which he reduced down to five and it is helpful first to set out those decisions which were not appealed:
(i) First issue--the three claims were joined (paragraph 5).
(ii) Second issue--the scope of Claim 203/19 was found to be as follows:
(a) Unfair dismissal (conceded by the Respondent).
(b) Direct discrimination on the grounds of sex, in relation to the dismissal of the Applicant.
(c) Direct discrimination on the grounds of disability in relation to the dismissal of the Applicant.
(d) Holiday pay.
(e) Payslips.
(f) Breach of contract. (paragraph 12)
In relation to (b) and (c) above, the Deputy Chairman made it clear that although the Applicant could refer evidentially to those additional matters raised in the further and better particulars, the only two heads of claim that she would be permitted to pursue were as pleaded originally, subject to any future application going forward.
(iii) Third issue--in so far as the Applicant purported to advance a claim for redundancy in Claim (44/20), it was struck out. The Deputy Chairman found that this would not in any way prejudice the Applicant's existing claims for unfair dismissal on grounds not related to redundancy.
24. The appeal relates to what the Deputy Chairman described as the fourth and fifth issues, concerning the identity and extent of the respondents to each of the claims made by the Applicant. The Applicant was seeking to advance claims inter alia against Advocate Baker, Advocate Robertson, the remainder of the Governing Body and any other employee or officer of the Respondent who was in any way involved. Quoting from paragraph 25 of his judgment:
25. The Tribunal had only admitted some of the claims against individuals other than Advocate Baker and rejected others. The Interlocutory Judgment focused on the position in respect of Advocate Baker as broadly the same issues arose in relation to governors in the three claims.
26. The Respondent applied for the claim against Advocate Baker to be struck out on the basis that the Respondent was the only proper respondent. The Deputy Chairman accepted that technically, if the strike out against Advocate Baker failed, then in principle at least, the Applicant would be able to revisit the claims against other individuals on the same basis. The argument advanced by the Applicant before the Deputy Chairman was that although it was her pleaded case that Advocate Baker had not himself in his individual capacity discriminated against her, he had nevertheless played a direct role in the Respondent discriminating against her, and that as a matter of Jersey law, he was liable to her as an agent of the Respondent. She also advanced a secondary or alternative position that Advocate Baker was personally liable to her for the discriminatory acts of the Respondent because he should be understood as "aiding and abetting" the Respondent to undertake discriminatory acts against her. The Applicant relied primarily on Articles 31 and 33 of the 2013 Discrimination Law. Article 31 is in the following terms:
27. Article 33 is in the following terms:
28. The Deputy Chairman summarised the central argument put forward by the Applicant in this way namely that as a consequence of being appointed to the Governing Body, Advocate Baker was de facto the agent of the Respondent and should at all times be considered as a separate legal personality to the Respondent. In participating as a member of the Governing Body and causing the Respondent to take some form of action, he was doing so as the appointed agent of the Respondent, and it was axiomatic that as it was Advocate Baker who inter alia had caused the Respondent to take action, in this case to terminate her employment. To the extent that such action gives rise to legal liability on the part of the Respondent, Advocate Baker is equally liable.
29. The Deputy Chairman had difficulty with that submission for two reasons:
(a) There was no evidence or agreement that the individual dynamic of being appointed to the Governing Body of the Respondent gave rise to a principal/agency relationship, and
(b) Whilst it is entirely possible for a director to be appointed as an agent of the company, a director is not de facto also an agent of that company.
30. In his judgment when the board of a company makes a decision, it is the company through the board that will be acting as the principal, as opposed to each of the members of the board acting as agents of the company. The action of the board is the act of the corporate personality and in his view, is properly described as the personification of the separate legal personality of the company. One of the difficulties with the Applicant's argument was that when the company makes a decision, it is the action not only of the company (one legal personality) but it is also the action of a collection of a number of other legal personalities (the individuals on the board) who are also to be viewed as the agents of the company. In his view, that could not be correct. Quoting from paragraphs 38 and 39 of his judgment:
31. He posed this scenario at paragraph 42:
32. The Applicant had placed considerable reliance on the case of Bungay & Another v Saini & Others UKEAT/0331/10/CEA, the facts of which I will consider later, but which the Deputy Chairman found to be of no assistance, as he said it was the officers of the corporate entity in that case who had engaged in the discriminatory behaviour.
33. The Deputy Chairman reached this conclusion at paragraph 43:
34. On 1st October 2020, the Applicant applied to the Deputy Chairman for the Interlocutory Judgment to be reconsidered and that was refused, for the reasons set out in his judgment of 19th October 2020.
35. On 28th October 2020, the Applicant applied to the Tribunal for leave to appeal the Interlocutory Judgment. That application was heard by Mr M Salter, Deputy Chair, who refused leave for the reasons set out in his judgment of 11th November 2020.
36. On 25th November 2020, the Applicant applied to the Royal Court for leave to appeal the Interlocutory Judgment. That application came before the Deputy Bailiff on 1st December 2020. He refused leave on two of the grounds put forward but adjourned the application for leave in respect of five grounds, all of which relate to the fourth and fifth issues in the Interlocutory Judgment.
37. An appeal against a decision of the Tribunal can only be made on a question of law, pursuant to Article 94(1) of the Employment (Jersey) Law 2003.
38. There was no dispute as to the test to be applied on an application for leave, as summarised by the Court in Raducan v Pizza Express Limited [2020] JRC 253 at paragraph 20, following Sumera v Atlantique Seafood TA Soy Sushi Restaurant[2019] JRC 164 at paragraph 4, namely that leave should only be granted where it was clear that a question of law had arisen which would lead to the original decision of the Tribunal being set aside, questions of law being characterised in this way:
(i) the Tribunal had misdirected itself in law or misunderstood the law or misapplied the law; or
(ii) there was no evidence to support a particular conclusion or findings of facts; or
(iii) the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached or alternatively was one which was obviously wrong, or
(iv) an incorrect procedure had been adopted by the Tribunal.
39. The Applicant put forward broadly the same arguments as she had advanced before the Deputy Chairman. In her skeleton argument she made a number of preliminary remarks. She said that as a matter of principle it was fair and just to hold individual Governors to account if they had committed discrimination. It was appropriate that wrongdoers are correctly identified and held to account, not just that the victims of discrimination are awarded compensation.
40. Furthermore, the identity of the respondents was potentially of practical importance to both her and to potential future claimants in her position; for example, a claimant cannot be awarded compensation because an employee company goes bankrupt or where there is no applicable insurance cover. She said it was possible that future claimants in her position may be left without a remedy for discrimination if the Court does not overturn the mistaken decision of the Deputy Chairman that those acting as the "controlling mind" of a company cannot be personally liable for any discrimination while so acting.
41. She said the identity of the potential respondents was also of practical importance in relation to disclosure orders that should be made against the persons concerned. It emerged at the hearing that she envisaged all of the Governors at the material time being made parties, irrespective of what was known as to their involvement, so that disclosure orders can be made against them, extending to e-mails in relation to her dismissal emanating from the law firms in which they worked. Once full disclosure had been obtained, it would then be possible to ascertain which Governors had acted unlawfully and should be held to account.
42. She informed me that she was still seeking reinstatement to the Respondent, but if that failed, she was seeking damages from the Governors personally as opposed to the Respondent. She wanted the Respondent to survive, and in essence, was arguing for the Respondent against its Governing Body.
43. The Applicant's submissions can be summarised as follows:
(i) The Deputy Chairman had mischaracterised her submissions. She had expressly argued not that the Governors became de facto agents of the Respondent, simply by virtue of their appointment, but because of the nature of their role as Governors as specified in the Respondent's constitution. What was important is that the Governors were carrying out authorised acts on behalf of the Respondent when they did something prohibited by the law and that the issue of agency is a matter that turns on the substance of the Respondent's constitution.
(ii) The Deputy Chairman erred in making a finding that claims against the Governors were brought on the basis that they should be personally liable to the Applicant in discrimination as a result of the Respondent itself engaging in discriminatory behaviour, simply by virtue of their appointment as Governors. The claims against the Governors were brought on the basis that while acting as agents of the Respondent they did something that is prohibited by law and that they also knowingly aided prohibited acts by the Respondent. The issue is whether the Governors were carrying out authorised functions in an unlawful manner and that turned on the facts which could only be determined at a full hearing.
(iii) The Deputy Chairman failed to take account of the Applicant's case at its highest in relation to the argument that the Governors should be liable for committing prohibited acts as agents of the Respondent or for knowingly aiding prohibited acts by the Respondent. If the claim form lacked clarity in relation to this, the proper course of action was to record how the case was being pleaded and to amend the claim form if necessary, since the claim form showed that sufficient evidence appears to exist to support claims against the Governors. The Deputy Chairman was aware and as stated in the further and better particulars for Claim 203/19 it was impossible for the Applicant to provide specific details about discriminatory acts which took place in secret and in her absence and when all of which records were being withheld at the time she submitted her claims.
(iv) The statement by the Deputy Chairman that Advocate Baker could not properly be described as an agent of the Respondent was lacking in logic and does not follow the law given the definition of an agent.
(v) The correct approach would have been for the Deputy Chairman to apply the test in Article 33 of the 2013 Discrimination Law on the pleaded facts, i.e. to consider whether the Governors were acting on the authority express or implied of the Respondent and to conclude that they would have been acting on the Respondent's authority if the constitution of the Respondent authorised them to make the kind of decisions in question.
(vi) Contrary to the conclusion of the Deputy Chairman an agent can be part of the "controlling mind" of the company for which he or she acts. The position in both English and Jersey law is, in the words of Appleby's Guide to Directors' Duties in Jersey 2019, that a company director should generally be "considered to be acting as agents for the company". As Viscount Haldane LC put it in the House of Lords in the English case of Lennard's Carrying Company v Asiatic Petroleum Ltd [1915] AC 705, 713:
(vii) Going right back in time, as Cairns LJ stated in Ferguson v Wilson [1866] LR 2 Ch 77 at 88-90:
(viii) Bowstead & Reynolds on Agency, paragraph 1-028 cites many authorities in support of its observation that the directors are agents of the company. As Lord Toulson and Lord Hodge JJSC said in Bilta (UK) Ltd v Nazir (No 2) [2015] UK FC 23 at paragraph 183:
(ix) The Deputy Chairman was correct that the Respondent cannot be both agent and the principal in an agency relationship, but here the Governors are the agents and the Respondent is the principal, and thus the Deputy Chairman erred in law when he decided that there is no separate legal personality also engaging in the discriminatory conduct, but simply those individuals who make up the Governing Body who caused the Respondent to take the alleged action.
(x) Under Article 33(1) of the 2013 Discrimination Law the "controller" is the Respondent, and the Governors are acting as its agents whenever they act on its authority. The term "controller" has a specific definition and has to be distinguished from the concept of the controlling mind of a company which is that of the Governors. Article 33(1) expressly states that an act of the agent can also be the act of the principal or controller and the effect, therefore, is that when the Governors are acting on the authority of the Respondent, as they are when they are carrying out authorised functions, they are doing something for which they as well as the Respondent can be liable if it is prohibited by the 2013 Discrimination Law.
(xi) The Deputy Chairman erred in distinguishing the decision in Bungay and Another v Saini and Others.
44. Whilst the Applicant's pleaded case is that all of the Governors are liable in respect of the discrimination allegations, she does not state how each governor is said to have acted unlawfully or even who is said to have done what; the allegations are entirely generic.
45. The Respondent, whilst denying each of the allegations of discrimination, accepts that it is the correct respondent in each of the three claims.
46. The Deputy Chairman was correct in his findings that properly analysed, the claims being pursued are against the Respondent. Articles 31 and 33 of the 2013 Discrimination Law are a red herring which have delayed and continue to delay the claims being determined. The agency principle may be properly applied in order to ensure that a wronged party is not unfairly deprived of a remedy, but that is simply not the case here, where the Respondent's acknowledgement that it is the proper respondent to the claims has been clearly stated from the outset.
47. The Courts are wary of interfering with the exercise of any discretion on the part of tribunals, particularly in an interlocutory matter. Sir Michael Birt, then Deputy Bailiff, stated in Broere and Others v Mourant and Others [2003] JCA 222 at paragraph 2:
"
49. Following the Interlocutory Judgment, the Applicant has now made three applications seeking to overturn it, prolonging and delaying the matter and driving up costs. Advocate Milner informed me that the Respondent had already incurred costs of some £60,000 to £70,000 and that is at her concessionary charge out rate of £210 per hour, in recognition of the fact that the Respondent is a charity. It was self-evident, she said, that the Applicant was seeking to involve as many people as possible in these proceedings.
50. In summary, this was not a clear case of something having gone wrong. To the contrary, the Interlocutory Judgment enables the Applicant to pursue her claims in the Tribunal against the Respondent with no financial detriment to her as a consequence of that decision. The value of any potential discrimination claim, should any such claim be successful, is unchanged.
51. I have no reason to question the conclusions reached by the Deputy Chairman that, properly analysed, the Respondent is the proper respondent to these claims as pleaded.
52. It is trite law that a company (or corporate entity) exists because there is a rule, usually in a statute, which says that an artificial person (persona ficta) is deemed to exist and to have certain powers, rights and duties of a natural person; the company exercises these through natural persons as its agents, those acts being attributable to the company (see Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500 at 506.) Company directors are agents of the company and as per Ferguson v Wilson in general terms whenever an agent is liable, the directors are liable, and, where the liability would attach to the principal, and the principal only, the liability is the company's liability. It does not follow that they are the only agents of the company; they may appoint other agents of the company by whose acts it will be bound. (See Smith v Hull Glass Co [1852] 11 CB 897).
53. There is no issue as to these basic principles. The question that arises is as to the true nature of the Applicant's pleaded case, properly analysed.
54. The Respondent is an incorporated body whose business and property is controlled and managed by its Governing Body and the position of the individual members of the Governing Body is analogous to the position of directors of a company. However, the Governing Body, which comprises a changing group of people as they are appointed and retire from time to time, is not itself a separate legal entity distinct from that of the Respondent, in the same way that a board of directors of a company is not a separate legal entity distinct from the company. Under the Respondent's constitution the Governing Body is the means by which it makes decisions, and the decisions of the Governing Body are the decisions of the Respondent.
55. The Applicant's pleaded case is not that Advocate Baker, or any other Governor, had in their individual capacities discriminated against the Applicant, but that the Respondent, acting through its Governing Body, had done so. There is one set of allegedly work or employment related discriminatory acts complained of by the Applicant on the part of the Respondent as her employer or prospective employer. As pleaded, this is a case in which the liability for the alleged work-related discrimination attaches to the Respondent as the Applicant's former and prospective employer. It cannot as a matter of law attach to the Governing Body as there is no such legal entity.
56. In the claim form for Claim 203/19, the Applicant names Advocate Baker a respondent as representing the Governing Body. However, the Governing Body is not a legal entity separate and distinct from the Respondent capable of being represented and there is no suggestion, as pleaded, that Advocate Baker is named as a respondent in his personal capacity for acts of discrimination going beyond those asserted against the Respondent. Whilst claims 44/20 and 130/20 do purport to name Advocate Baker as a respondent in his personal capacity, the details of both claims make no reference to any alleged acts of discrimination on his part.
57. I agree with the way the Deputy Chairman deals with the application of Articles 31 and 33 of the 2013 Discrimination Law set out in paragraphs 38 and 39 of his judgment cited above. Article 31 has no application here. The discriminatory acts complained of are those of the Respondent, as the Applicant asserts. It can only carry out those acts through its Governing Body, but the Governing Body is not a separate legal entity capable of aiding and abetting the Respondent; the acts and decisions of that group of persons are the acts and decisions of the Respondent.
58. Similarly, the Applicant is not claiming that any given Governor has acted as agent in a discriminatory manner that would bring Article 33 into play and make the Respondent liable for the acts of that Governor, a valuable protection to those dealing with an individual Governor. The "controller" is the Respondent and under its constitution that control is exercised by the Governing Body, but again the Governing Body is not a separate legal "person" acting in the capacity of agent. As the Deputy Chairman put it, Articles 31 and 33 require or presuppose that more than one legal person is involved in the discriminatory acts.
59. That is not to say that there are no circumstances in which an individual director of a company (or equivalent) can be made a respondent in a discrimination claim made against a corporate employer. In Bungay v Saini, the chairman of the board of a not-for-profit advice centre incorporated as a company ("the Centre"), then in compulsory liquidation, and another member of the board ("the Appellants") were found jointly and severally liable with the Centre for damages, including aggravated damages, arising out of the unfair dismissal of and discrimination on the grounds of faith against two employees. The employees had named the Appellants and the Centre as respondents to their claims, in that the Appellants were responsible in the case of one employee, of steering through the claims of gross misconduct against him and fabricating evidence in support of those claims to disguise the real reason behind the dismissal, that he was of a different religious belief (paragraph 7). The treatment of the other employee was found to be equivalent to harassment on the grounds of religion (paragraph 11).
60. The Employment Tribunal had found the Appellants to be agents of the Centre within Regulations 22 and 23 of the Employment Equality (Religion or Belief) Regulations 2003. Regulation 22 is broadly equivalent to Article 32 of the 2013 Discrimination Law (Liability of Employee and Employer --not in play here) and Regulation 23 is broadly equivalent to Article 31 of the 2013 Discrimination Law (Aiding Prohibited Acts). It was argued on behalf of the Appellants that they were acting as directors of the Centre, and not as agents and furthermore there had been no finding of agency.
61. Applying the common law rules of agency, the Employment Appeals Tribunal held that the test of authority is whether when doing a discriminatory act, the discriminator was exercising authority conferred by the principal (which, in this case, was the Centre), and not whether the principal (namely the Centre) had in fact authorised the Appellants to discriminate. It was clear from the articles of the Centre that the Appellants had the power to manage the business of the Centre and there had been a finding that they were the prime movers in the discrimination campaign against the employees, which was carried out in the name of the Centre and in the Appellants' work as directors. The Employment Tribunal was entitled to conclude that the Appellants were acting as its agents, even though they performed their duties in a discriminatory manner.
62. The campaign of discriminatory behaviour conducted by the appellants had resulted in the dismissal of both employees and they had been instrumental in causing both to be arrested. In those circumstances, it was entirely appropriate that joint and several liability should be awarded, a finding upheld by the Employment Appeal Tribunal. Reference was made by the Employment Appeal Tribunal at paragraph 36 to the case of Gilbank v Miles [2006] IRLR 538, in which the Court of Appeal upheld a finding of the Employment Tribunal that the appellants' salon manager was jointly and severally liable to pay compensation for acts of pregnancy discrimination against the claimant, notwithstanding that some of the acts of discrimination were carried out by other managers, because she had "consciously fostered and encouraged a discriminatory culture".
63. In my view, the Deputy Chairman was right to distinguish the case of Bungay v Saini on the facts. In Bungay v Saini, the conduct of the two directors was reprehensible in that they had orchestrated and led a campaign to harass the employees on religious grounds, fabricating evidence and conducting unfair disciplinary hearings. They were the discriminators exercising authority conferred by the Centre. In this case, it is the Respondent that is the alleged discriminator, not Advocate Baker or any other individual Governor. As pleaded, there are no allegations against Advocate Baker or any other Governor justifying their inclusion as respondents in their individual capacities.
64. On the contrary, when asked direct questions about this, the Appellant seemed to accept, quite candidly, that she had no evidence to support allegations of discrimination against any individual Governor. In response to questioning, her approach was understood to be that all of the Governors should be added as respondents in their individual capacities and through disclosure orders against them, to discover whether there is any evidence to support an individual Governor being made personally responsible for the alleged discriminatory acts, should they be proved.
65. In my view, this is a quite improper way to proceed and is close to an abuse of process. It involves adding some six respondents to a claim against the Respondent as the former or prospective employer, greatly increasing the costs and complexity of the proceedings in what can fairly be described as a fishing expedition for evidence upon which to base a personal claim against them. Such an approach would be against the overriding objective and it would leave the door open for future claimants to routinely name directors of companies (or equivalent) to claims brought against an employer.
66. I reject the Applicant's submission that to the extent that the claims only disclose a case against the Respondent, I should give leave for the claims to be amended. I can see no grounds upon which that could properly be done, but since the Applicant's claim for damages against the Respondent is unaffected by the Interlocutory Judgment, it would be disproportionate and against the overriding objective to do so.
67. A further point arises, as submitted by Advocate Milner on behalf of the Respondent, namely that this is an interlocutory judgment. The Deputy Chairman was faced with three claims, each relating to the other, which, using his words, were unclear and in many respects woefully deficient, leaving the Tribunal and the Respondent in some considerable difficulty in identifying precisely what the claims being advanced were. The matter demanded firm case management and a focus upon the real issues, which, as the Deputy Chairman correctly found, were as between the Applicant and the Respondent. As the Court said in Broere v Mourant, the Court should be slow to grant leave to appeal on interlocutory matters unless there is a clear case of something having gone wrong, and there is no indication of something having gone wrong in this case.
68. For all these reasons, the application for leave to appeal the Interlocutory Judgment is refused.
