Appeal No. UKEAT/0405/11/SM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
13 October 2011
Judgment handed down on 29 November 2011
Before
THE
HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)
MR
D BERESFORD APPELLANT
1) SOVEREIGN HOUSE
ESTATES
2) MRS S HUMPHRIES RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE –
Parties
The Claimant
brought proceedings against the First Respondents under the Sex
Discrimination Act 1975, partly arising out of alleged harassment by the
Appellant, a former colleague. She advanced no claim against the Appellant and
made it clear that she had no wish to do so; but the First Respondents applied,
some time after the start of the proceedings, to have him joined. The
Employment Judge acceded to that application, relying on rules 10 (2) (k)
and/or 10 (2) (r) of the Employment Tribunal Rules of Procedure.
HELD,
allowing the Appellant’s appeal, that in the absence of any claim by the
Claimant the only basis on which the Appellant could properly have been joined
would have been that the First Respondents were making a contribution claim
against him pursuant to the Civil Liability (Contribution) Act 1978
(though it was debatable whether such a claim in fact lay or, if so, whether
the Tribunal had jurisdiction to entertain it); but that since no such claim
had been advanced in the Tribunal, no ground for his joinder had been shown.
Discussion of
scope of rules 10 (2) (k) and 10 (2) (r).
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
INTRODUCTION
1.
On 28 April 2010 the Claimant in these proceedings, Ms Sharlene
Humphries, presented a claim in the Employment Tribunal against her employer,
Sovereign House Estates Ltd, to whom I will refer as “the Respondents” (though
strictly they are the First Respondents before me, the Claimant being the Second
Respondent). The essence of her claim was that she was sexually harassed by a
colleague called Dorian Beresford, who is the Appellant before me, over a long
period culminating in September 2009; and that when she complained she was
victimised by being made to move offices. She was ill for a while and
subsequently resigned: she claimed that her resignation constituted a
constructive dismissal and was unfair. I should make it clear that these
allegations have not been proved.
2.
By the time that the Claimant presented her claim the Appellant had
himself left the Respondents’ employment, for unconnected reasons, and had brought
employment tribunal proceedings against them. They accordingly had no access
to his version of events as regards the Claimant’s claim of harassment. In
their Response they deny the Claimant’s allegations wholesale; but they also
plead the statutory defence under section 41 of the Sex Discrimination Act
1975.
3.
On 14 January 2011 the Respondents’ solicitors made a number of
applications in the Employment Tribunal, among them for the Appellant’s and the
Claimant’s claims to be heard together and for an order “that Mr Beresford be
joined as a Respondent to Ms Humphries’ claim”. The basis of the latter
application was put as follows:
“(1) Joinder of Mr Beresford
to Ms Humphries’ claim
(a) Ms Humphries claims that the Respondent is
vicariously liable for sexual harassment by Mr Beresford between December 2007
and about September 2009 while both were employed by the Respondent and seeks
compensation for injury to feelings and financial loss.
(b) That Mr Beresford did so is denied by the
Respondent and is understood to be denied by him. However if Ms Humphries
establishes her claim then Mr Beresford may be liable for that remedy claimed
by Ms Humphries.
(c) It would be unfair for Mr Beresford to avoid
that liability should, contrary to the Respondent’s case, he have conducted
himself as alleged by Ms Humphries in her ET1 “Particulars of Claim”.”
Both applications were resisted both by the Appellant and by the
Claimant. So far as the Claimant is concerned, it is and has consistently
remained her position that she does not seek any relief against the Appellant.
4.
The applications were considered at a joint Case Management Discussion by
Employment Judge Goldman at the East London Hearing Centre on 1 April 2011.
All three parties were represented by counsel – in the Appellant’s case Ms Kate
Annand and in the Respondents’ Mr Martin Young. The Judge declined to order
that the cases should proceed together; but she acceded to the application that
the Appellant be joined in the present proceedings. Paragraphs 4-6 of the Case
Management Discussion Summary read as follows:
“4. The Respondent’s application, under Rule
10(2)(k) of the Employment Tribunal Rules 2004, to join Mr Beresford as the
Second Respondent in the Humphries case is allowed. Mr Beresford is named as
the perpetrator of the acts of sex discrimination of which Miss Humphries
complains. He is a person “who the … tribunal considers may be liable for a
remedy claimed should be made a respondent to the proceedings”. Further, it is
also noted that, under rule 10(2)(r), and person who the … tribunal considers
has an interest in the outcome of the proceedings may joined as party to the
proceedings and it is in the interests of justice that he is a Respondent and
thereby takes part to deal with any issues which might result in a finding of
liability against him.
5. Mr Young expressed concerns that there is a risk of
collusion between the Claimant and Mr Beresford were she to settle any claim
against him while her claim against Sovereign House remains current. In the
event of any confidential agreement being reached between Mr Beresford and Miss
Humphries, an application can be made for the Tribunal to rule on the question
of disclosure of the level of any payment made by way of settlement.
6. The Claimant’s claim will be served on Mr Beresford
who will have the right to respond within the standard period of 28 days from
the date the claim is sent to him.”
7.
The Appellant has appealed against the order joining him in the
proceedings. The appeal is resisted by the Respondents. The Claimant has
indicated that she does not wish to take any part. The Appellant and the
Respondents are again represented by Ms Annand and Mr Young.
THE RELEVANT RULES
8.
Rule 10 (1) of the Employment Tribunal Rules of Procedure reads
as follows:
“General power to manage
proceedings
(1) Subject to the following rules, the
Employment Judge may at any time either on the application of a party or on his
won initiative make an order in relation to any matter which appears to him to
be appropriate. Such orders may be any of those listed in paragraph (2) or
such other orders as he thinks fit. Subject to the following rules, orders may
be issued as a result of an Employment Judge considering the papers before him
in the absence of the parties, or at a hearing …”
Paragraph (2) gives “examples” of orders which may be made under
paragraph (1). Heads (k) and (r), referred to by the Judge, are as follows:
“(k) that any person who the Employment Judge or
tribunal considers may be liable for the remedy claimed should be made a
respondent in the proceedings;
…
(r) that any person who the Employment Judge or
tribunal considers has an interest in the outcome of the proceedings may be
joined as a party to the proceedings.”
9.
I should say something about the potential application of each of those
two sub-paragraphs to the circumstances of the present case. It should however
be borne in mind that they do not necessarily represent the totality of the
Tribunal’s powers because of the peculiar structure of rule 10, which in
principle leaves it open to employment judges to make case management orders
going beyond the precise terms of the specified examples.
RULE 10 (2) (k)
10.
The essential condition for the application of this sub-paragraph is
that the Judge should consider that the party sought to be joined “may be
liable for the remedy claimed”, although if that condition is fulfilled he or
she retains a discretion whether in fact to make the order. The classic
instance of such a case is where a claimant seeks the joinder of an
additional or substitute respondent, for example because he or she has
misidentified the respondent in the original claim form or has subsequently
learnt of other persons potentially liable. That is not the present case, and
I need say nothing more about it, save to note that it has generated a fair
amount of case law, concerned in particular with the question of limitation.
11.
However, the joinder of an additional respondent at the instance, as
here, of another respondent, in circumstances where the claimant
expressly disavows any intention to seek a remedy against him or her, is more
problematic. In their original application to the Judge the Respondents put
their case on the straightforward basis that if the Appellant had acted as
alleged by the Claimant he will have been liable to her – see paragraph 3
above. That is no doubt correct: where an employee harasses a claimant, or
otherwise treats him or her in a way which constitutes unlawful discrimination,
both he and his employer are jointly liable (subject, in the employer’s case,
to the statutory defence), albeit by a rather unusual route – see London
Borough of Hackney v Sivanandan [2011] IRLR 740, at note 1 (p. 747).
So far so good, but would the Appellant be “liable for the remedy
claimed” ? That is not on its face the same as asking if the party in
question would be “liable for the acts complained of” or “liable for the injury
done by the acts complained of”: I can see a reasonable argument that a person
is only liable for a remedy if that remedy is sought against him, which the
Claimant has made clear is not the case here. On this approach rule 10 (2) (k)
would apply only to cases where the joinder application is made by the claimant.
It might be said, however, that that was too pernickety an interpretation, and
that the phrase could, at least so far as the words themselves are concerned,
be reasonably read as meaning “liable to the claimant (whether or not he or she
so claims) for the acts complained of”. But that by itself would still not get
the Respondents home. If the Appellant were to be joined on that basis, what
in practice would it mean ? Even if the Appellant is indeed potentially liable
to the Claimant, I do not see how she can be made to pursue a claim against him
if she does not wish to do so. More particularly, I cannot see how the
Tribunal could issue a judgment in favour of the Claimant declaring the
Appellant to be liable to her when she had never advanced any such claim. Such
a judgment would be devoid of content. Ms Annand told me that, following the
Judge’s announcement of her decision, she asked if she was ordering the
Claimant to amend her claim form. The Judge replied, in effect, that that was
unnecessary because the existing claim form would do duty as a claim form
against the Appellant since it already set out all the allegations against
him. That approach was pragmatic, but it avoided the Judge and the parties
confronting the fundamental question of who was claiming what relief against
the Appellant.
12.
At first sight, the obvious answer to this difficulty would be that the
Respondents were seeking to join the Appellant so that they – not the
Claimant – could claim a remedy from him. Joinder on that basis is of course
commonplace in the ordinary courts: under Part 20 of the Civil Procedure
Rules a defendant who has a claim against a third party connected with the claimant’s
claim against him can have the third party joined in the proceedings. It is of
course fundamental to joinder on this basis that the defendant should have a
cause of action against the third party. In the present case neither the
Respondents nor the Tribunal sought to identify what that cause of action was.
I shall come back to that omission in due course. But I suggested to the
parties that if there were any such liability it could only be on the basis of
the Civil Liability (Contribution) Act 1978, which allows one joint
tortfeasor to claim contribution against another in respect of their joint
liability to the claimant. Discrimination is often described as a statutory
tort, and the Court of Appeal held in Ross v Ryanair Ltd [2005] 1 WLR 2447 (though apparently without the point having been argued) that the 1978
Act does indeed apply to liabilities under the discrimination legislation – see
paragraph 28 (p. 2458). However, on closer analysis it is far from clear that
joinder on that basis is possible under rule 10 (2) (k), for at least two
reasons.
13.
First, there is no equivalent under the Employment Tribunal Rules of
Procedure to Part 20 of the CPR. It could perhaps be argued that any
liability on the part of the Appellant to pay contribution to the Respondents
under the 1978 Act could fall within the phrase “liability for the remedy claimed”,
but that seems to me a strained construction. However, this may not be fatal.
It is possible that an Employment Judge could nevertheless give appropriate “third
party directions” in the exercise of his general powers under rule 10 (1). But
he could of course only do so for the purpose of granting relief which was
otherwise within the Tribunal’s power – which brings me to the second problem.
14.
Secondly, and more fundamentally, it is questionable whether an
employment tribunal has the power to determine a claim for contribution between
joint discriminators. The right to contribution is the creature of statute –
in England and Wales the 1978 Act (and its predecessor the Law Reform (Married
Women and Tortfeasors) Act 1935) and in Scotland the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1940. It is strongly arguable that the power to
award contribution under the Act arises only in relation to liabilities in
respect of which the ordinary courts have jurisdiction (which would not of
course include a claim for discrimination in the employment field); and, even
if that is not the case, it is strongly arguable that such a claim for
contribution can only be pursued in the ordinary courts. This point was
trailed, rather obliquely, in Todd v Strain [2011] IRLR 11, which
in fact concerned joint liability under regulation 15 (9) of the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (“TUPE”),
and more explicitly in Sivanandan (above) – see at para. 25 (p.
746); but in neither case did it fall for decision. However, whether such a
claim would ultimately be held to lie or not, none was advanced before the
Tribunal or before me until I adverted to it in the course of argument. Mr
Young did, following the hearing, put in further written submissions; but Ms
Annand, as was her right, did not. Even if I were to allow the point to be
argued now, I could not fairly decide it on the submissions made so far. As it
happens, I have only last week heard the question fully argued, in Sunderland City Council v Brennan
(UKEAT/0286/11), in which judgment has been reserved. It would in theory be
possible to stay the present appeal until judgment was given; but that may be a
little while, and the parties need to know where they stand sooner rather than
later, since the hearing as between the Claimant and the Respondents is listed
for late January next year.
RULE 10 (2) (r)
15.
The scope of this sub-paragraph is not entirely clear, and no authority
as to its effect was cited to me. It is said in Harvey on Industrial
Relations and Employment Law at para. [P1] 557 to cover cases where such
bodies as the Equality and Human Rights Commission have an interest in a point of
law of general importance arising in the particular case; and Ms Annand
submitted that that was the sole purpose and effect of the rule. It may be
that it does indeed apply in such a case (though it is debatable whether
joinder as a party is necessary in order to allow the tribunal to hear
submissions). But I certainly do not accept that that is the limit of its
range. It is not difficult to imagine circumstances in which C may have an
“interest in the outcome” of proceedings between A and B such that justice
requires that he be joined in those proceedings. The most obvious case is
where he will be liable to indemnify B if he loses, whether as a matter of
contract or under the general law: sometimes his interest can be protected by
his being entitled to take over the conduct of the proceedings, as in the case
of an insurer, but that will not always be so. For example, in the recent case
of Dillon v Todd (UKEATS/11/10) (the successor case to Todd
v Strain (above)) I observed that in a claim brought against a
transferor for breach of the consultation obligations under TUPE the transferee
ought always to be made a party because, by virtue of regulation 15 (9), he
would be jointly and severally liable for any eventual award (see paragraph 12
of the judgment). I said that if he were not joined by the claimant he could
be joined by the primary respondent or by the tribunal. I note that I referred
to rule 10 (2) (k), but I should also have referred to sub-paragraph (r). But
there may also be cases where, even though C will not be rendered liable as
such by the tribunal’s decision, his legal or other interests will be directly
affected by it. In my judgment sub-paragraph (r) could also apply in such
cases. It does not of course follow that a joinder order should be made in
cases where the interest in question is less direct: that will depend on the
circumstances of the case.
16.
In those examples, however, it is C who is making the application to be
joined, in order to protect his legitimate interests. It is much harder to see
how it could be appropriate for A or B to seek an order under sub-paragraph (r)
to have C joined where he himself does not wish to be joined and neither of
them wishes, or is legally entitled, to pursue a claim against him. Thus
ultimately the same question arises under this sub-paragraph as under
sub-paragraph (k), namely whether the Respondents would have jurisdiction to
bring a contribution claim against the Appellant.
17.
I should add for completeness that if the position were that, although
the Tribunal had no power to determine a contribution claim between joint
discriminators, the County Court did enjoy such a power, it might be arguable –
I put it no higher – that the Appellant could still be joined as a party in the
tribunal proceedings in order that he should be bound by the findings made,
which could then be relied on in the County Court by way of issue estoppel.
But that too depends on the scope and effect of the 1978 Act.
THE APPEAL
18.
The Notice of Appeal identifies seven grounds of appeal but goes on to
particularise only six of them: Ms Annand confirmed that the fifth – (e) – was
not being pursued. I need not, for reasons which will appear, consider all six
of the remaining grounds, but I should note that the last is that the Judge
gave inadequate reasons for her order. As to that, I agree that the decision
to join the Appellant in the proceedings was a significant order requiring to
be properly reasoned. I also accept that the Judge’s reasons are pretty
summary, and it can fairly be said that they hardly engage with the issues that
potentially arise. But it should perhaps be said in her defence that the
argument before her was apparently pretty summary too: both counsel told me
that the bulk of the hearing was concerned with the issue of whether the
Claimant’s and Appellant’s claims should be heard together.
19.
The essence of the point made in all five of the remaining grounds is
that the Respondents were seeking to join the Appellant on the basis of a claim
which it was said that the Claimant had against him when in fact she had made
it clear that she was pursuing no such claim and when, if she were pursuing
such a claim, it would be long out of time. It will be clear from my analysis
at paragraphs 10-16 above that I agree with that submission. The Respondents
cannot have the Appellant joined simply on the basis that he is liable too and
that it is unfair that the Claimant should have singled them out rather than
him. The only (potential) basis for joinder is that they themselves wish to
pursue a claim in the Tribunal against the Appellant under the 1978 Act. That
basis is legally questionable, for the reasons given at paragraphs 13 and 14
above; but since I am not in a position fairly to decide that issue now the
real question is whether I should allow the appeal to be run on a basis which
emerged only in the hearing before me and as a result of my raising it. I have
come to the conclusion that it would be wrong to do so. It is unusual for this
Tribunal to allow a point to be raised which was not advanced before the Judge;
and it would be particularly unsatisfactory that for me to have to grapple with
a difficult point of law on the basis of written submissions from one party
only. Nor do I believe that it would be fair to the Appellant. The
application was made nine months into the proceedings, at a time when any claim
against him by the Claimant would have been long past the primary time limit
and he could properly have understood that any question of legal liability was
dead and buried. (There may in fact be no limitation point available to him as
such, since contribution claims under the 1978 Act attract a special limitation
regime; but the elapse of the primary limitation period for a claim by the
Claimant is nevertheless relevant to the exercise of my discretion whether to
allow a new point to be taken.)
20.
I will accordingly allow the appeal and discharge the order for the
joinder of the Appellant, on the ground that the case advanced before the Judge
did not afford any basis for his joinder and that a new case should not be
allowed to be raised now. It may be that when the decision is given in Brennan
it will appear that there are also more substantial grounds for allowing the
appeal; but, as to that, the parties will have to wait and see.
21.
This outcome does not mean that the parties need be deprived of the
benefit of the Appellant’s evidence at the hearing. He is susceptible to a
witness order in the usual way, and, without in any way wishing to bind the
Judge to whom any such application is made, it seems to me that in the
particular circumstances of this case an order should be considered even if the
Appellant is unwilling to give a statement to either party, so that either may
cross-examine him.
