Mrs A Wilson and others v St Philips Community Centre and Preschool and others: 2411299/2021 and others

EMPLOYMENT TRIBUNALS

Case No 2411299/2021

Between

Mrs A Wilson (1), Miss A Bather (2), Mrs K Aldred (3) and Mrs R Flanagan (4)Claimant

(1) St Philips Community Centre & Preschool (2) Karen Conroy (3) Susan Lloyd (4) Stuart Wood (5) The Parochial Church Council of St. Thomas and St. Johns Parish (PCC)Respondent

Before

Employment Judge McCarthy

Date 18 August 2023

JUDGMENT

[1]The correct name of the first respondent is the Management Committee of St Philips Community Centre.

[2]The employer of all four claimants was the Management Committee of St Philips Community Centre (the “Management Committee”).

[3]The members of the Management Committee at the relevant time were Ms S Lloyd (third respondent), Mr S Wood (fourth respondent), Mr K Smith, Ms R Mills and Reverend J Clawson.

[4]As there is currently no nominated single individual to deal with the claims/be sued on behalf of the Management Committee, Mr K Smith, Ms R Mills and Reverend J Clawson should be added as respondents to these proceedings and Mr S Wood and Ms S Lloyd should remain as respondents.

[5]The second respondent, Ms Conroy, was not a member of the Management Committee at the relevant time and so should be removed as a respondent to these proceedings as she has been wrongly included.

[6]The fifth Respondent should be removed as a respondent to these proceedings as it was not the employer of any of the four claimants and has been wrongly included.

REASONS

[1]This was a public preliminary hearing in which the parties participated by video conference (CVP). The preliminary hearing was listed to determine the following issues:a. Whether the claimants were employed by any of the current respondents;

b. If not, whether any other parties should be added or removed from these proceedings;

c. If appropriate, to make case management orders, to identify the legal issues and list the case for final hearing.

[2]It was directed that the cases brought by the four claimants be considered together because they appear to give rise to common or related issues of facts and law. The common or related facts related to the closure of St Philips Pre-school at which they all worked, and allegations made against them prior to the termination of their employment. The Agenda submitted for the preliminary hearing lists the complaints as unfair dismissal, notice pay and redundancy pay. Mrs Wilson (the first claimant) was the only claimant not claiming notice pay.

[3]The second, third and fourth claimants gave evidence that they had been served notice of redundancy following the closure of St Philips Pre-school but all claimed that they had all not been paid their redundancy pay or notice pay. They also complained of unfair dismissal.

[4]The first claimant had resigned (with notice) shortly before the closure of the nursery because of the alleged failure of the St Philips Management Committee to deal with her alleged protected disclosure. She claims (constructive) unfair dismissal and claims that she should still have received a redundancy payment of £4,690 as if the “centre/employers knew there were money difficulties, then I would not have handed in my resignation and would have been entitled to redundancy. I feel I have been penalised as a whistleblower”.

[5]It was not clear from the file whether a response form had been received from the first respondent.

[6]By a response form on 17 May 2022, the second respondent (Ms Conroy) filed a response on her own behalf only (and not on behalf of the first respondent). The second respondent denied that she was the claimants’ employer. She stated that she was not a member of the management committee of St Philips Community Centre and Pre-school at the date of dismissal of any of the claimants, as she resigned on 24 June 2021, and was not therefore liable for any claims the Claimants may have (which are not admitted in any event). The second respondent was informed that her response was filed out of time and an application to for extension of time for presenting a response was necessary. It was not clear from the file whether such an application was made, and whether the response has since been accepted.

[7]On 1 August 2022, it was directed that the third and fourth respondent (Ms Susan Lloyd and Mr Stuart Wood) should be added as respondents to the proceedings. Both the third and fourth respondent filed a response resisting the complaints. The response forms (which were submitted on behalf of the third and fourth respondents as individuals and not on behalf of the first respondent) both stated that they were not the employer of the claimants. The response forms also stated that the claimants were not employed by the management committee of St Philips Community Centre and Pre-school and were instead employed by the “Parochial Church Council of St Thomas and St Johns Parish” (referred to as “PCC”). The third and fourth respondents claimed it was the PCC who had ultimate control of the running of the first respondent, redundancy decisions, the closure procedures, its assets, accounts and monies.

[8]On 1 August 2022, Employment Judge Allen wrote to the parties and specifically referred the claimants to the fact the response forms of the third and fourth respondent stated that the claimants were not employed by the management committee of St Philips Community Centre and Pre-school and were instead employed by the PCC.

[9]Employment Judge Allen also said that: “2. It was very important to the fair determination of the claimant’s claims that the correct employer is identified. That is the main purpose of the preliminary hearing. 3. With this in mind the claimants must consider carefully the terms of the response form presented on behalf of Stuart Wood and Susan Lloyd and whether they agree it.”

[10]Following the receipt of the response forms of the third and fourth respondents, it was directed that the fifth respondent be added as a respondent to these proceedings.

[11]The fifth respondent provided a response on 30 September 2022. It denied that it was the employer of the claimants and said it was not involved in this matter. The fifth respondent requested to be removed from the proceedings and stated that the correct respondent was the first respondent as it was the employer of the claimants. The fifth respondent said that the St Philips Community Centre was an independent business, it had its own accounts, bank accounts, meetings and employed accountants for claimants’ payroll. Procedure/Documents and evidence heard

[12]This was a hearing where the parties, their representatives and witnesses participated remotely via CVP. I heard oral evidence from the four claimants on their own behalf, the second, third and fourth respondent on their own behalf and Reverend Jeffery Clawson on behalf of the fifth respondent. By consent, I ordered in that all remaining lines in paragraph 10 which followed the words “ Specifically, the following” ….(line 4 of paragraph 10 up to the end of paragraph 10) of Reverend Clawson’s witness statement be struck out. This section was not entered into evidence as the contents of the section were irrelevant to the issues that were being determined at this public preliminary hearing and related to safeguarding allegations.

[13]During the hearing I was referred to documents within an agreed electronic bundle which contained 226 pages (including the further documents provided by the third and fourth respondent’s representative prior to the hearing) and was provided with written witness statements for all of the witnesses. This claimant’s had previously provided a bundle of documents themselves but as these were incorporated into the agreed electronic bundle, the agreed electronic bundle was used during the hearing and I have referred to the page numbers from the agreed electronic bundle in this judgment. I was also provided with an agenda document.

[14]I heard evidence and submissions on the first two days of the preliminary hearing (the original listing of one day was insufficient to hear all of the evidence so the preliminary hearing was re-listed for a further day on 11 May 2023). Due to their being insufficient time on the second day of the hearing for me to deliberate and provide a preliminary judgment, the preliminary hearing was listed for a further day on 9 June 2023. The parties were not required to attend on this day, and I sat in chambers to deliberated and come to a decision.

[15]I am grateful to Miss Bather who was nominated to provide representation and submissions for the claimants and cross examine the respondents and/or their witnesses. The other claimants were also given an opportunity to add anything to Ms Bather’s representation, in terms of representations, submissions and questions of cross examination.

[16]I considered written submissions from Mr Stenson (counsel for the third and fourth respondent) and Mr Williams, counsel for the fifth respondent. I also considered oral submissions from Mr Stenson, Mr Williams, the claimants (via Ms Bather) and Ms Conroy. On the first day of the hearing, I had invited the respondents’ Counsel to provide closing submissions on the cases of Affleck v Newcastle Mind

[1999] IRLR 405

[1999] ICR 852

, EAT (“Afflick”) and Nazir v Asim and Nottinghamshire Black Partnership (Debarred)

UKEAT/0332/09

[2010] ICR 1225

] (“Nazir”).

Findings of Fact

[17]The relevant facts are as follows. Where I have had to resolve any conflict of relevant evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents.

[18]This four claimants worked at St Philips Pre-school (the “Pre-school”), which was located in the St Philips Community Centre, Radcliffe, Manchester (the “Centre”). The Centre’s premises are vested in the Manchester Diocesan Board as custodian Trustees for The Parochial Church Council of St. Thomas and St. Johns Parish (the “PCC”), who are the managing Trustees of the premises. The Chair of the PCC was Reverend J Clawson, its Vicar.

[19]The first claimant, Mrs Wilson was the manager of the Pre-school and had been in this post for over 22 years when her employment ended on 21 July 2021, following her earlier resignation. Mrs Wilson had, prior to her resignation, also been an elected member of the management committee of St Philips Community Centre (the “Management Committee”).

[20]The other claimants were employed in the Pre-school until the termination of their employment, by reason of redundancy.

[21]The second respondent, Ms Conroy, was also employed by the Pre-school as administrator from 25 January 2016 until the termination of her employment on 5 September 2021. She was also a member of the Management Committee until 24 June 2021.

[22]The claimants all had contracts of employment. The fourth respondent, Mr Wood, who had recently resigned as Chair of the Management Committee, confirmed in an email to Reverend Clawson (the Vicar of St Thomas and St Johns Parish) on 21 September 2021 that “all pre-school employees had contracts.” (224). I was also referred to employment records for Mrs Wilson, Mrs Aldred and Mrs Flanagan (54, 55, 60) and a “Principal Statement” for Mrs Wilson (53). It was not in dispute that all four of the claimants were employed at the Pre-school.

[23]On 1 August 2022, Employment Judge Allen has specifically referred the claimants to the third and fourth respondents’ argument that the claimants were not employed by the Management Committee but were instead employed by the PCC. I asked the claimants at the outset of the hearing who they believed was their employer. The claimants were unambiguous in their answer, and all confirmed it was the first respondent. None of the claimants had identified the PCC as their employer in their claims. When they had entered early conciliation with ACAS the claimants had all identified the prospective respondent as the first respondent (1, 26, 27, 28). In their witness statements, the claimants do not identify the PCC as their employer or possibly their employer. In evidence, they refereed to their payslips and P60s as to why they believed the first respondent was their employer. When cross examined by Counsel for respondent’s three and four, the claimants agreed that the PCC might have been the employer but I agree with Mr Williams submission that this was in the context of the claimants being offered another potential entity (and possibly more substantial) entity that may be available to sue. Pay documentation.

[24]The claimants had provided various documents for inclusion in the bundle relating to their pay. They provided copies of their P60s, examples of the payslips they had received when employed at the Pre-school and HM Revenue and Customs documents.

[25]The P60 certificates for the tax year to 5 April 2021 for all four claimants listed the employers name as St Philips Community Centre (142, 143, 144 and 145).

[26]The payslips included in the bundle, for all four claimants listed that employer as St Philips Community Centre (141, 146, 147, 148, 153, 156, 160).

[27]The HM Revenue and Customs documents showing the taxable income of two of the claimants (Miss Bather (152) and Miss Flanaghan (158)) state “Taxable income from ST PHILIP’S COMMUNITY CENTRE”).

[28]The Management Committee engaged a payroll company to process the salaries of the employees of the Pre-school and to produce payslips (which included the claimants). Ms Lloyd confirmed that the claimants were paid their wages by the Management Committee directly from the Centre’s bank account (rather than via the payroll provided). The Centre’s bank account was separate from the PCC and the signatories on the account were from the Management Committee. This was confirmed in oral evidence from Ms Lloyd, who was the Treasurer on the management committee of St Philips Community Centre at the time. Ms Conroy confirmed that she and Ms Lloyd were signatories on the bank account and that Ms Rita Mills (another member of the Management Committee) was the third signatory. This evidence is also confirmed in Ms Coroy’s email to Reverend Clawson and others on 21 September 2021 (96). Employee Records

[29]I was provided with copies of the “Employee Record” for three of the claimants -Mrs Wilson, Mrs Aldred and Mrs Flanagan (54, 55 and 60). This was a one-page form including contact details for the claimants, their education and qualifications and who had checked them, their DBS details and who had checked them, their references and who had checked them, the date they had been interviewed and employed and who had interviewed them and emergency contact details. Some of these individuals were connected with the PCC, for example Jean Smith was a current member of the PCC but others were on the management committee.

[30]In relation to Mrs Wilson her employee record recorded that her DBS, qualifications had each been checked by individuals including Jean Smith, Ms Conroy and Reverend Gully. Mr Wood gave evidence that he suspected that Reverend Gully, who was said to have checked Mrs Wilson references, was the Curate of the parish at that time (so would have likely been the Chair and/or St Philips Trustee on the Management Committee).

[31]Mrs Aldred’s employee record (55) recorded that her referees, DBS, qualifications had each been checked by Mrs Wilson and/or Jean Smith.

[32]Mrs Flanagan’s employee record (60) recorded that her referees, DBS, qualifications had each been checked by Mrs Wilson and/or Ms Conroy. Principal Statement

[33]I was referred to a copy of Mrs Willson’s most recent statement of particulars which was dated 25 April 2016- entitled “Principal Statement” (53). This stated that her employer was St Philips Community Centre Management Committee. The Principal Statement was signed by both Mrs Wilson and the “Employer”. Ms Conroy had signed the statement as the “Employer”. Ms Conroy confirmed in cross examination that she had signed the Principal Statement in her capacity as the Secretary of the Management Committee. After her signature on the Principal Statement are the typed words “Karen Conroy (Secretary)”. In oral evidence Ms Conroy confirmed that she would sign Principal Statements for Pre-school employees on behalf of the Management Committee but said that sometimes other members of the Management Committee would sign the Principal Statements -it was not always her.

[34]The Principal Statement states that in relation to Holidays/ holiday pay that “Holiday Pay accrued for working time is paid immediately prior to Summer Closure with July wage. Holidays are to be taken during closures unless authorised by the Management Committee.”

[35]The Principal Statement states that the claimant’s line manager is Ms Conroy and that grievances should be sent in writing to Ms Conroy by applying in writing to St Philips Community Centre Committee c/o Secretary. When Mrs Wilson raised a grievance on 12 August 2021, she addressed it to “Stuart (Committee Chair)”. (84)

[36]There is no mention of the PCC in the Principal Statement as the employer or otherwise.

[37]I was not provided with the Principal Statements for the second, third and fourth claimant but find that their employer was also recorded in their Principal Statements as “St Phillip’s Community Center Management Committee”. The claimants’ P60s and pay slips all show the same name for their employer – St Philip's Community Centre. The Employee Record documents for the other claimants are in the same format as Mrs Wilson’s Employee Record. The redundancy documents sent to the second, third and fourth claimant in July and August 2021 were sent by the Chair of the Management Committee at that time (Mr Wood). Mr Wood, in cross examination, accepted that the Management Committee was the employer of all of the claimants but argued that the Management Committee was doing it on behalf of the PCC. Ms Conroy also confirmed to me, that in the contract for her role as administrator at the Pre-school it stated that she was employed by the Management Committee. She then stated that she also considered herself employed by the PCC because Trustees from the PCC were on the Management Committee.

[38]When asked in cross examination who she thought was the employer of the claimants, Ms Conroy said that “in general it was the St Philips Management Committee and PCC.” She said the Management Committee and PCC was “one and all because of the appointment of trustees.” She was then asked who she thought was her employer as administrator of the pre-school. She then stated she was “employed by the Management Committee which included members of the PCC – members of the PCC were members of the Committee.” I noted that Ms Conroy had not identified the PCC as the employer of the claimants or of herself (when employed as an administrator at the Pre-school) in her response and that at the time she submitted her response she was legally represented. Ms Conroy’s witness statement for this preliminary hearing also did not identify the PCC as the employer of the claimants or of herself. She confirmed in evidence that after the Pre-school advertised unsuccessfully for an administrator, before submitting her application, she spoke with the Management Committee about whether it would be appropriate for her to apply for the role. I agree with Mr Williams that Ms Conroy was now adopting, ex post facto, the arguments put forward by the third and fourth Respondent. Reports/ Issues

[39]Mrs Wilson made her management reports regarding the Pre-school to the Management Committee, not the PCC. The bundle contains a copy of the minutes of one such meeting (61). I also find that any issues concerning the Pre-school were raised with the Management Committee. Mrs Wilson confirmed that when there were issues concerning the Pre-school she would raise these issues with the Management Committee. For example, when Mrs Wilson had concerns about how EYPP funding was being spent, Mrs Wilson said she raised these with Ms Conroy first and then to the Chair of the Management Committee. In During cross examination, Mr Wilson confirmed that she would not have gone to the Reverand Clawson of about her concerns.

[40]During cross examination, Ms Conroy confirmed that when something went wrong in the Pre-school as an employee she would first referred them to the Manager of the Preschool and then to the chair of the Management Committee. She then said that she would then contact one of the Trustees on the PCC, however, when probed confirmed she had never had reason to contact the PCC as would generally contact the Chair of the Management Committee and he would take responsibility to contact the PCC. When asked who she would report issues to regarding the Pre-school, in her capacity of Secretary of the Management Committee, she again said she would first approach the manager of the Preschool, then the Management Committee and then the PCC. However, when probed, Ms Conroy could not recall when she had referred any concern to the PCC and said that as the Trustees were in the Management Committee meetings she generally did not need to escalate to the PCC as people from the PCC were at the meetings. I find that Ms Conroy escalated any concerns to the Management Committee rather than the PCC.

[41]Mrs Wilson first contact with Reverend Clawson was after she had resigned and the Pre-school had been closed. She contacted him, amongst others, after first trying, without success, to get an explanation from Mr Wood as to why the Pre-school was closed.

[42]The other claimants never met Reverend Clawson or had any contact with him during their employment. The first contact they had with him was when he wrote to them on 21 September 2021, asking for information about their employment with the Pre-school fas Mr Wood had resigned from the Management Committee. Mrs Wilson’s Resignation

[43]I find that Mrs Wilson resigned on 14 June 2021 from her employment and from the Management Committee by a letter addressed to “To the Management Committee of St Philips Pre School” (63 and 180). The reason for her resignation is not relevant to the preliminary matter being dealt with at this preliminary hearing.

[44]Mrs Wilson handed her resignation letter to the chair of the Management Committee, Mr Wood (the fourth respondent), on 14 June 2021. In her letter of resignation Mrs Wilson wrote: “To the management committee of St Philips Pre School I have worked for yourself for many years and have thoroughly enjoyed the majority of it. However due to changes in the job role outside of my control I feel like my time with the preschool has run its course. It is with a heavy heart that I am having to submit my letter of resignation. I am willing to see out the remainder of the academic year for the sake of the children and other staff members. I wish yourself and the committee the best of luck in your future endeavors”.

[45]On 20 July 2021, Mrs Wilson was sent a letter from “Chair St Philipps Community Management Committee” (181). It said: “ I apologize (sic) that, in dealing with the events that occurred shortly after your resignation, I have not yet written to acknowledge your resignation or the service you have given to St Philips Preschool and the Community centre over a long period. I do this now in grateful appreciation for the work you have undertaken in setting up the preschool and managing it all these years. I am grateful for the benefits that the Pre-school have given to the St Philips Community Centre and offer my thanks to you, for the considerable service you have rendered to the Preschool and Community Centre”.

[46]I find that Mrs Wilson’s employment came to an end on 21 July 2021, at the end of the academic year and the latest date that Mrs Wilson was a member of the Management Committee was 21 July 2021. Redundancy Documentation

[47]On 16 July 2021, the claimants were invited to a meeting to discuss the closure of the Pre-school and to discuss “the practical issues of pay, redundancy and practical aspects of the closure that involved them.” The draft minutes of this meeting (71-72) identifies those who were present as “Stuart Wood (SW) Chair SPMC [St Philips Management Committee], Sue Lloyd (SL) Tres SPMC (present as a witness and notetaker). Andrea Wilson Pre-School Manager (AW). Rebecca Flanagan AS, Preschool manager. Kathleen Aldred, Autumn Bather, childcare staff. “ The minutes of this meeting show that it was conducted by Mr Wood in his capacity of Chair of the Management Committee.

[48]Mr Wood informed the claimants that the closure was because the Pre-school was no longer financially viable because of the low number of children registered for the September term. He explained that in the past, when there was a low number registered for the September term, the Centre had had sufficient funds and would generate more through fundraising activities to cope with the short term loss incurred by the Pre-school. However, because of the pandemic, no fundraising was possible, and there were no reserves to cover a Pre-school financial loss if they began the September term with low numbers.

[49]On 23 July 2021, the second, third and fourth claimant were each sent an email with the title “St Philips At Risk of Redundancy Notice” on 23 July 2021 informing them that “owing to the closure of St Philip’s Preschool you are at risk of redundancy.” These notices were sent from “Stuart Wood”. (73, 77 and 79).

[50]On 2 August 2021, the second, third and fourth claimant were each sent an email with the title “Re: Redundancy Notice” (81, 82, 83). These “Redundancy Notices” was sent from the Centre’s email address and were all sent by “Stuart Wood, Chair, St Philips Community Centre” and were all identical in content other than the employee’s name and the number of weeks they were entitled to for notice. I have reproduced Miss Bather’s Notice of Redundancy below: “ Notice of Redundancy Dear Autumn As previously discussed, owing to the closure of St Philip’s Preschool your employment is being terminated due to redundancy. You should have already received your final pay and holiday pay”. You are entitled to 7 weeks notice. You will not be required to work your notice period and you will be paid the balance of your notice period after the 31 August 2021. Details of the notice period payment and your statutory redundancy pay will be given once they have been calculated. I regret that the preschool has had to close. I thank you for the service you have given the Preschool and offer my best wishes for your future employment. Yours sincerely Stuart Wood Chair St Philips Community Centre

[51]Whilst the Notice Redundancy letter is not explicit as the termination date for the second, third and fourth claimant. I accept Miss Bather’s evidence that the second, third and fourth claimants’ employment came to an end on 31 August 2021. The Notice of Redundancy letter states that after 31 August 2021 the “balance” (my emphasis) of their notice period will be paid. As referred to in Mrs Wilson’s Principal Statement (53), the PreSchool has a summer closure period during which the claimants were expected to take their holiday. The Principal Statement refers to employees being paid their accrued holiday pay prior to Summer Closure with their July wage. The Redundancy Notices sent to the second, third and four claimants refer to how they received their final pay and their holiday in their July wage. Mr Wood (when Chair of the Management Committee) had also told the PCC’s Standing Committee on 23 July 2021, that the redundant Pre-school employees “will be paid their usual wage up until the end of July, then their usual holiday pay for August.” (184).

[52]The second, third and fourth claimants say that they did not receive any further payments from their employer after receiving their salary for July and their holiday pay in their July salary payment. They are bringing claims for outstanding notice pay and redundancy payment. Closure of the Pre-school

[53]The Pre-school nursery was closed initially for the week commencing 21 June 2021. A notice was placed on the door of the pre-school for parents (64). “ ST PHILIP’S CC MANAGEMENT COMMITTEE St Philip’s Pre-school is closed this week due to unforeseen circumstances. The management committee sincerely regrets any inconvenience caused. Please phone Karen [Conroy]...for further information.

[54]The Pre-school did not reopen before a decision was made to close the Pre-school permanently. I find that following a verbal report (68 and 69) and recommendation from Mr Wood, in his capacity as Chair of the Management Committee and Trustee of St Philips, that the Pre-school should close as its financial position made it no longer viable, the PCC voted to accept the proposal to close the school at a PCC meeting on 14 July 2021 (226). I find that the PCC was not acting of its own initiative to close the Pre-school but were presented with a “fait accompli”. During cross examination, Mr Wood accepted in cross examination that the suggestion that the Pre-school was no longer viable and needed closing was his and that the PCC was responding to his suggestion and saying it did not disagree.

[55]Following the PCC meeting, Mr Wood met with staff at the Pre-school and informed them that the Pre-school would be closing permanently. He said that “advice was bring sought as to the legally appropriate way to close the setting and a closure plan will be made the PCC and Centre Management Committee based on this advice.”

[56]A Standing Committee meeting of the PCC was organised to discuss the closure of the pre-school. Having considered the minutes of this meeting (182- 184), I find this meeting was held to provide “support” to Mr Wood rather than to direct or control Mr Wood in relation to the closure of the Pre-school and the redundancy process. It is clear from the minutes of this meeting that Mr Wood was taking advice on how to close the Pre-school from the Management Committee’s own adviser’s (Early Year’s Alliance) independently of the PCC. This is also confirmed in the minutes of the subsequent Emergency Standing Committee meeting held on 30 August 2021(185).

[57]It is also clear from the Risk of Redundancy Notice (73, 77 and 79) sent to the second, third and fourth claimants that Mr Wood was acting on the advice from the Management Committee’s advisers and conducting the redundancy process in accordance with it rather than being controlled by the PCC.

[58]An Emergency Standing Committee meeting was held on 30 August 2021. The minutes of the meeting (185) state that the meeting was called “to support [Mr Wood] with the next steps with regards to St Philip’s Pre- School”. The minutes record that Mr Wood shared that he had been liaising with the Early Years Alliance with regards to the closing of the Pre-School. Mr Wood also shared with the Standing Committee that “there was not enough money in St Philip’s funds to cover the estimated cost of redundancies and we needed to work out where the money came from.” Reverend Clawson informed Mr Wood that the Standing Committee/PCC could not make the decision to pay the redundancy money and would need to take legal advice.

[59]It appears that Reverend Clawson initially thought that the PCC may consider paying the redundancy costs, but the PCC never voted on whether to pay such costs as the Management Committee did not have the funds and instead took legal advice on who was the claimants’ employer and whether it was liable to pay such payments.

[60]At a further PCC meeting on 8 September 2021, the minutes show that the PCC had very little knowledge and/or information about the administration and day to day workings of the Centre, the redundancy process and the claimants (191-193). The PCC discuss the need to establish who was the employer of the Pre-school staff by establishing who had sent out the redundancy notices, who was the employer on the claimants’ pay slips and who was stated as the employer in the claimants’ contracts. It was also clear that they did not have any detail regarding Mrs Wilson’s resignation – whether she had resigned with immediate effect or worked her notice, when her employment had ended and had it ended before the nursery had closed. Reverend Clawson told the PCC that it did not need another meeting if the PCC was not the employer of the Pre-School staff as then they did not have a decision to make about paying the redundancy costs.

[61]I asked Mr Wood who he believed would have been responsible for the redundancy payments if the Management Committee had had sufficient funds in the Centre’s bank account. He confirmed that he believed the Management Committee would have been liable to pay the redundancy payments initially to the Pre-school staff. He said that they would “start from Management Committee funds and then any shortfall would come from the parent body.” I find that Mr Wood only looked to the PCC when he realised that the Management Committee did not have the funds to cover the redundancy payments. Events following Mr Wood’s resignation.

[62]Mr Wood resigned as Chair of the Management Committee with immediate effect on 13 September 2021 (86). He also resigned as Trustee of St Philips Community Centre and his membership of the PCC. Following Mr Wood’s resignation, Reverend Clawson asked him for various pieces of information (199, 201, 224) including:a. All financial statements as the PCC would need to review them;

b. A list of members of the management committees for the Pre-school management committee and of the Centre, with contact details and who was active on both lists;

c. The minutes of the meeting of the management committees for the Pre-School and the Centre;

d. Information about the bank account for the Centre (and if more than one then all accounts)- the signers, name of the bank and account number and photocopies of bank statements;

e. All information on the Prs-school employees that were made redundant;

f. The contact details for Mrs Wilson; and

g. If the employees of the Pre-school had a contract or not.

[63]Reverend Clawson also asked Mr Wood on 15 September 2021 (199), whether it was true he had stated to others that the PCC would pay redundancies for pre-school employees. Reverend Clawson wrote “as we are in the process of sorting out liability it is not appropriate at this time to indicate who would be paying redundancies.”

[64]Mr Wood provided this information on 16 September 2021 (87). He provided Reverend Clawson with the contact information for the “Redundant Employees” who he listed as Mrs Aldred, Mrs Flanagan, Miss Bather and Ms Conroy. Mr Wood also wrotea. that the current members of the Management Committee were “Sue Lloyd (Treasurer), Ken Smith (Trustee) and Rita Mills”; b. there “never has been a preschool management committee, the preschool was set up and run by the Centre Management Committee”; c. for financial statements, Reverend Clawson should contact Ms Lloyd, alternatively financial accounts etc were on the Centre Computer held by Ms Conroy. He wrote that Ms Conroy had been allowed to hold the computer at home to complete Pre-school business while the Centre was closed; d. there were two bank accounts for the Centre, a current and saving account and Ms Lloyd was the signatory for both accounts and that he did not have the account details, but Ms Lloyd would give these to Reverend Clawson; and e. Minutes of the Centre Management Committee meetings were archived on the Centre Computer.

[65]Reverend Clawson contacted the second, third and fourth respondent on 21 September 2021 (89, 90, 93, 94, 95). He wrote that Mr Wood had now resigned from his role and he was “currently working to ascertain how best to resolve matters.” He said that at present he “did not have the information I need to determine what payments were due to be paid to you by St Philips Community Centre. I have requested this information from the management committee and will continue to do so”.

[66]Reverend Clawson also wrote that “we are seeking to confirm whether the PCC will be liable for the redundancy payments or whether these will be claimed from the government.” He asked the three claimants to fill out a form providing various pieces of information concerning their employment with the Pre-school including their full name, date of birth, national Insurance number, start date of employment contracted hours per week, hourly rate of pay, whether they had not received a redundancy payment, whether they were willing to share their pay slips and their contact telephone number.

[67]The Venerable Jean Burgess (Archdeacon of Bolton) contacted the second, third and fourth claimant individually on 12 October 2021 to follow up on the letter Reverend Clawson had sent to them all on 21 September 2021. “We have finally received clarification and confirmation that St Philip’s Community Centre is legally independent of the PCC of St Thomas and St John, Radcliffe. The General Management Committee of the St Philips Community Centre is your legal employer and has been and is still wholly responsible for your employment terms and conditions, pay and now your redundancy payment. I can confirm that the PCC of St Thomas and St. John's Radcliffe has no legal responsibility or obligation towards you as employees of St Philip’s Community Centre. I appreciate that this is still a difficult position for you but hopefully the clarity that the legal responsibility for your employment does lie with St Philips Community Centre Management Committee will enable you to receive advice about how to progress this.”

[68]I find that the PCC never agreed to pay the redundancy costs or accepted that they were liable for them. The PCC did not accept that they were the employers of the Pre-school staff (including the Claimants). I find that Reverend Clawson’s efforts “to ascertain how best to resolve matters” and contact the claimants for their employment details was not an admission that the PCC was their claimants’ employer.

[69]On 20 September 2021 Ms Conroy contacted a member of the PCC and wrote “Hi Barry Would you like to give me a call about handover of financial info. for St Philips? Would put it in an e-mail, but a lot of ground to cover, so would be best to speak to you or make arrangements to meet at St Philips?”

[70]On 21 September 2021, Ms Conroy sent a detailed handover note to members of the PCC (including Reverend Clawson) entitled “ St Philips and Pre-school handover to PCC” (96-97). She gave details of the Bank account and the current signatories on the accountMs Lloyd and Ms Mills. She gave details of where the Centre PC and back up could be found, what records it contained and the passwords needed to access the records. She explained that arrangements would need to be made so she could hand over her keys and that the PCC would need the alarm codes for the building and bar, if they had not already been provided by Mr Wood. She explained where in the Center the PCC could find paper records for the Centre (including historic records). She provided details regarding the Centre’s email account and explained that it was still operational as most of the correspondence, bills and accounts for the Center were managed through the email. Ms Conroy also provided details of where the Centre’s passwords, account numbers and contact details for online accounts could be found and information about the annual checks on the building (such as gas). She also provided some information on the pre-school accounts, email and wages, p45s and redundancies.

[71]On 2 March 2022, Reverend Clawson confirmed, in relation to a request from the Assistant Diocese Safeguarding Adviser for confirmation of dates when the Pre-school employees were employed, that “the PCC has no employee records from the preschool. I would not be able to confirm dates of employment nor even if someone had actually been employed. Though repeated requests have been made to members of the management committee to provide records to the PCC, we have not been given them. Subsequently, we have been told, all members of the management committee have resigned”. (129-130) The Constitution and Management Committee

[72]The PCC was the managing Trustee for the Centre’s premises. The Centre had a constitution and was formed as a members club meeting at the Centre, with members varying from time to time. In the bundle were various versions of the constitution, but I find that the most recent constitution was dated 31 December 2005 (56-59) (the “Constitution”). I accept Mr Wood’s evidence that there had been some discussion about updating the constitution, creating a new members club or changing the legal status of the Community Centre – such as “forming the Centre into a registered charity” or a propriety club (178) but there is no evidence that this constitution was ever updated, a new members club created or its legal status changed prior to the termination of the claimants’ employment. There is also no evidence that the club was subject to dissolution at any point prior to the termination of the claimants’ contracts or that the Management Committee was made a sub-committee of the PCC. Mr Wood gave evidence that an at a meeting in 2015 it resolved the notion of removing members as it was administratively difficult. However, no evidence was provided that the resolutions to remove the notation of members or revise the constitution were taken forward. The handwritten comments on what appears to be a letter containing legal advice, suggesting that instead of removing membership that the Management Committee should receive advice on how to avoid administration in relation to members (177). Also, Mr Wood refers to the parents of the Pre-school children being “members” of the Centre during a meeting with the PCC’s Standing Committee on 23 July 2021 (182).

[73]The Management Committee continued to have annual AGM’s.

[74]The Constitution states at clause 11 that the Management Committee of St Philips (referred to in the Constitution as the General Management Committee (GMC)) shall be “responsible for the raising funds and payment of bills, ordering of supplies and the engagement, dismissal and payment of staff, and for all other matters involving the disbursement of monies except as provided for in clause 11.”

[75]The Constitution states at clause 9 that the club affairs shall be managed by the GMC, which shall be made up of the following people:a. The chairperson

b. The Honorary Secretary

c. The Honorary Treasurer

d. Three Trustees of the Club appointed by the Managing Trustees;

e. Not more than ten elected members.

[76]The members of the Management Committee provided their services on a voluntary basis.

[77]Clause 23 of the Constitution dealt with Dissolution – “If the Incumbent of the Parish of St Thomas and St John’s, or in his absence the Chairperson shall consider the affairs of the Club are being conducted contrary to the spirit of this constitution, they shall cause a meeting of the GMC [the Management Committee] to be convened at which the suggested dissolution shall be considered.”

[78]Clause 23 makes clear that neither on dissolution nor at any other time shall any member be entitled to a share in the funds or assets of the Club and that the balance of funds standing in the credit of the Club, after all liabilities have been met, shall be transferred to the PCC.

[79]The PCC appointed Mr Wood, Reverend Clawson and Ken Smith to be the Trustees of St Philips Community Centre in 2020 and 2021 as evidenced by the minutes of the PCC meeting held on 14 July 2021. (225) The 2021 appointments were made on 14 July 2021 and there is no evidence that any of the Trustees resigned prior to the termination of the claimants’ employment. Reverend Clawson was also chair of the PCC at the relevant time.

[80]I find that the Management Committee did manage the Clubs affairs and was still responsible for the raising funds and payment of bills, ordering of supplies and the engagement, dismissal and payment of staff, and for all other matters involving the disbursement of monies except as provided for in clause 11 as at the date of that each of the claimant’s employment terminated. I find that the Management Committee was not a subcommittee of the PCC. It is clear from the documentary evidence referred to above in paragraphs 52 – 76 above, the PCC had a lack of knowledge of the Centre’s, and particularly, the Pre-schools affairs, its day to day management and a lack of involvement in them. In addition when Mr Wood contacted OFSTED on 30 June 2021, he wrote “ I am the chair of St Philips community centre management committee which has oversight of St Philips Preschool”. (66) Mr Wood also confirmed that the Pre-school was “set up and run by the Centre Management Committee.” (87)

[81]The Management Committee was chaired by Mr Stuart Wood (the fourth respondent), who was also a Trustee of the St Philips Community Centre, during 2021 until his resignation on 13 September 2021. Mr Wood was the chair of the Management Committee when Mrs Wilson’s employment terminated and when the second, third and fourth claimant’s employment came to an end and when their alleged outstanding notice pay and redundancy pay became due.

[82]Mrs Wilson was not a member of the Management Committee after her employment terminated on 21 July 2021 and was not a member of the Management Committee when the second, third and fourth claimant’s employment came to an end and when their alleged outstanding notice pay and redundancy pay became due.

[83]The second respondent, Ms Conroy was the Secretary of the Management Committee from around 2012 until her resignation (to Mr Wood and with immediate effect) on 24 June 2021 (140). She confirmed in cross examination that she was not appointed by the PCC. Mr Wood confirmed in cross examination that Ms Conroy had no links with the PCC. Ms Conroy was not a member of the management committee when Mrs Wilson’s employment terminated or when the second, third and fourth claimant’s employment came to an end and when their alleged outstanding notice pay and redundancy pay became due.

[84]The third respondent, Ms Lloyd was the Treasurer of the Management Committee during 2021 and was still the Treasurer when Mrs Wilson employment terminated and when the second, third and fourth claimants’ employment terminated and when the second, third and fourth claimant’s employment came to an end and when their alleged outstanding notice pay and redundancy pay became due.

[85]Ms Lloyd confirmed in cross examination that she was not appointed by the PCC and had no links with the PCC.

[86]Reverend Clawson disputes that he was a member of the Management Committee. I find that he was nominated by the PCC to sit on the Management Committee as a Trustee of the St Philip’s Community Centre in 2020 and was reappointed on 14 July 2021 for 2021 (225). Whist I accepted his evidence that he had not attended any meetings of the Management Committee and not been invited to the AGM, by virtue of the Centre’s Constitution, as a Trustee appointed by the PCC, I find he was a member of the Management Committee. He was a member when Mrs Wilson employment terminated and when the second, third and fourth claimant’s employment came to an end and when their alleged outstanding notice pay and redundancy pay became due.

[87]Mr Wood confirmed to Reverend Clawson the current members of the Management Committee on 16 September 2021 (87). He confirmed these were “Sue Lloyd (Treasurer), Ken Smith (Trustee), Rita Mills”. Ken Smith (who Mr Wood did not believe was aware of these proceedings) and Rita Mills are not currently named as individual respondents in these proceedings.

The Law

[88]Section 240 (4) of the Employment Right’s Act 1996 (the “ERA”) defines employer in this Act as “means the person by whom the employee or worker is (or, where the employment has ceased, was) employed”.

[89]Section 240(5)(a) of the ERA defines employment as “in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment.”

[90]There is no statutory definition for an ‘unincorporated association. I was referred by Mr Stenson to the case of Conservative and Unionist Central Office v Burrell [1981] EWCA Civ 2 where Lawton LJ gave the following definition of an unincorporated association: “I infer that by "unincorporated association" in this context Parliament meant two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will. The bond of union between the members of an unincorporated association has to be contractual”.

[91]In relation to the definition of unincorporated associations in common law Mr Williams referred me to paragraph 34 of Nazir which is reproduced below: [34] The place of UAs in the law and society of England and Wales was outlined recently by Hughes LJ in R v L and another

[2009] 1 All ER 786

. We cite the following passage with gratitude as background to the issues we have to consider. "[11] There are probably almost as many different types of unincorporated association as there are forms of human activity. This particular one was a club with 900-odd members, substantial land, buildings and other assets, and it had no doubt stood as an entity in every sense except the legal for many years. But the legal description 'unincorporated association' applies equally to any collection of individuals linked by agreement into a group. Some may be solid and permanent; others may be fleeting, and/or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association, but so are a number of learned societies with large fixed assets and detailed constitutional structures. So too is a fishing association and a trade union. And a partnership, of which there are hundreds of thousands, some very large indeed, is a particular type of unincorporated association, where the object of the association is the carrying on of business with a view to profit. [12] At common law, an unincorporated association is to be distinguished from a corporation, which has a legal personality separate from those who have formed it, or who manage it or belong to it. The most numerous species of corporation is the limited liability company, but there are of course other types, such as chartered professional associations, local government bodies and indeed bishops. At common law, as the judge succinctly held, an unincorporated association has no legal identity separate from its members. It is simply a group of individuals linked together by contract. By contrast, the corporation, of whatever type, is a legal person separate from the natural persons connected with it. [13] This is an apparently simple legal dichotomy duly learned by every law student in his first year. But its simplicity is deceptive. It conceals a significantly more complicated factual and legal position. [14] As to fact, many unincorporated associations have in reality a substantial existence which is treated by all who deal with them as distinct from the mere sum of those who are for the time being members. Those who have business dealings with an unincorporated partnership of accountants, with hundreds of partners worldwide, do not generally regard themselves as contracting with each partner personally; they look to the partnership as if it were an entity. The same is true of those who have dealings with a learned society, or a trade union, or for that matter with a large established golf club. Frequently, as Lord Philips CJ pointed out in R v W Stevenson & sons (a partnership)

[2008] EWCA Crim 273

at [23], [2008] 2 Cr App Rep 187 at [23] third parties will simply not know whether the organisation being dealt with is a company or some form of unincorporated association. [15] As to the law, it no longer treats every unincorporated association as simply a collective expression for its members and has not done so for well over a hundred years. A great array of varying provisions has been made by statute to endow different unincorporated associations with many of the characteristics of legal personality. Examples selected at random include the following. The detailed special rules for partnerships contained in the Partnership Act 1890 scrupulously preserve the personal joint and several liability of the partners (see ss 5–12), and the Law Commission recommendation in November 2003 that a firm should have legal personality has not been implemented, but the partnership can sue or be sued in its firm name: see CPR 7.2A and 7 PD 5A.3, repeating a rule which has existed for more than a century. A trade union is, by statute, not a corporation: s 10(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. But by the same section it can make contracts, sue and be sued in its own name, and commit a criminal offence. In the case of learned societies and institutions, their property (if not vested in trustees) is by s 20 of the Literary and Scientific Institutions Act 1854 vested in their governing body, albeit that neither the institution nor the governing body is a corporation. Nor are these developments confined to the statutory. As long ago as 1901 the House of Lords held in Taff Vale Railway Co v Amalgamated Society of Railway Servants

[1901] AC 426

that a trade union (unincorporated) could be sued in its own name despite the absence of any statutory provision permitting it. Lord Lindley observed (at 442–443) that the problem of how to adapt legal proceedings to unincorporated societies consisting of many members was by no means new, and that the rules of common law had had to be altered to meet them. Those several examples relate largely to civil liability, but as will be seen, there is a similar variety of provision dealing with criminal liability in the case of unincorporated associations."

[92]In common law, unincorporated associations do not have a legal identity separate from the members. However, employees employed by an unincorporated association are employed, not by all the members of the association, but by the association’s management or executive committee and the members of that committee from time to time [Affleck as approved by the EAT in Nazir]

[93]In Harvey on Industrial Relations and Employment Law at division PI [295] “The correct respondents are, therefore, the members of the relevant committee at the relevant time (ie at the time the particular cause of action arose). In Affleck, the EAT considered that, as a matter of practice, it would be preferable, when bringing proceedings against such a committee, for a representative respondent to be nominated, so that 'one person would be named as the respondent sued on his own behalf and on behalf of all other members of the executive committee at the relevant time”.

[94]In Affleck the Honourable Mr Justice Morison said: "[13].... Under the Tribunals Rules of Procedure, para 17(3), it is quite possible for there to be a representative respondent, and in such a case as this it would be desirable if this were possible for it to be done; namely, one person would be named as the respondent sued on his own behalf and on behalf of all other members of the executive committee at the relevant time. [14] Where there is a faction or factional dispute between the members of the committee, it may not be possible to provide for a representative respondent because it may be that the other members of the committee would not be content for their affairs to be handled by the named individual..... Of course, it is possible for any of the members of the executive committee to apply to be joined as a respondent as they plainly have an interest in these proceedings."

[95]Nazir also held that, unlike the position in the civil courts, an unincorporated association could be sued in its own name in employment tribunals. Whilst the EAT remained of the view that it remained good practice for a claimant employee to name a representative respondent who was a member of the management committee at the relevant time and state that he is sued on his own behalf and on behalf of all other members of the management committee at the relevant time, it is permissible to sue the management committee (rather than its individual members). [paras 42-47]

[96]In Nazir, His Honour Judge Richardson said: “[45] We must say, however, that it is in our experience common in employment tribunals for an employee to bring a claim naming a UA as respondent. This is hardly surprising: many employees will complete their own claim forms; they will be likely to give the name of the UA as their employer (indeed often their statements of terms and conditions of employment will name the UA rather than the management committee); and they cannot be expected to know about the legal status of a UA, still less about the practice advocated in Affleck. Indeed it is in our experience not unusual for the whole proceedings in such a case to be conducted without any individual being named. [46] There are reasons why the practice in employment tribunals ought to differ from the practice before civil courts. We have the following points particularly in mind. Firstly, employment tribunals are to a large extent concerned with claims by employees against their employers. As we have said, the management committee of the UA will generally have engaged an employee in the name of the UA. Whether or not this is the case, we do not think a management committee has any cause for complaint if an employee brings proceedings in the name of the UA. Secondly, in tribunal proceedings the time limits for commencement of proceedings are generally strict: if proceedings started in the name of a UA were liable to be dismissed, there would be potential for procedural delay if not injustice. Thirdly, undue formality is to be avoided in tribunal proceedings (see for example rule 14(2) of the Employment Tribunal Rules). Fourthly, as we have said, employees generally cannot be expected to know about the special legal position of unincorporated associations. These matters are relevant to the overriding objective of dealing with cases justly; and therefore to be taken into account in construing the Rules: see reg 3 of the 2004 Regulations. [47] We therefore consider that it is permissible for an employee to bring a claim against an employer who is the management committee of a UA by using the name of the UA. Such a claim is not irregular. It will not (for example) be liable to be struck out, leaving an employee with a time limit problem. It follows that we reject Mr Crow's submissions on these points. [48] Whether a claim is brought in the name of the UA, or in the name of a representative respondent in accordance with the practice in Affleck, there are questions which may need attention by case management.(1) Do the members of the management committee actually know of the proceedings?

(2) Is there any objection (either from the UA or from any representative respondent) to the proceedings continuing as they have begun?

(3) Is there any conflict of interest or disagreement between committee members which may require one or more to be added as respondent?

(4) Is there any likely problem of enforcement unless all or most members of the committee of the UA are made respondents? [49] There will be many cases (particularly where the UA is legally represented and a large and well managed body) where these issues do not arise. Often it will be clear from the response whether this is so. There will be other cases where some or all these issues arise – particularly where the UA is small and run by volunteers, or where there has been disagreement within the UA. Employment Judges should be alert to these issues particularly where the employee or the UA does not have experienced legal representation. They are entitled to make enquiries, at a case management discussion or by order, as to these issues. The powers which they may exercise include rule 10(k) of the Employment Tribunal Rules (whereby the Employment Judge may order any person who may be liable for the remedy claimed to be joined in the proceedings). As we have said, the practice advocated in Affleck remains good practice; but if there are doubts concerning the questions we have mentioned, it may be desirable for all or more members of the management committee to be joined. If specific allegations of misconduct are made against a member of the management committee, for example, we think that member should be joined; the interests and concerns of that member may be different from those of the committee generally.”

[97]The relationship between employer and employee is primarily a contractual one governed by the terms and conditions agreed between them and contained in their contract of employment and a number of statutory rights and restrictions (and, in some cases, terms and conditions reached through collective agreements).

[98]Rule 34 of the Employment Tribunals Rules of Procedure 2013 (Schedule 1 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) provides that the Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.

Discussion and Conclusions

[99]On the basis of my findings of fact I conclude the following:

[100]I agree with the evidence overwhelmingly point to the Management Committee of St Philips Community Centre (the “Management Committee”) as being the claimant’s employer. This is the correct name of the first respondent.

[101]I found that the claimants’ employment contract ( titled “Principal Statements”) were with the Management Committee. They specifically reference the Management Committee as the employer. They were signed by Ms Conroy, in her capacity of the Secretary of the Management Committee or another member of the Management Committee. Mrs Wilson’s contract also clear that it is the Management Committee who must approve holiday and to whom grievances must be made.

[102]The claimants’ payslips and P60s refer to St Philips Community Centre being their employer.

[103]Mrs Wilson resigned to the Management Committee and her resignation was acknowledged by the Chair of the Management Committee.

[104]The redundancy process undertaken in relation to the second, third and fourth claimants was conducted by the Management Committee. The emails notifying the second, third and fourth claimants that they were at risk of redundancy and giving them notice of redundancy were sent by the Management Committee.

[105]There are no references to the PCC being the claimants’ employer in their contracts of employment, their payslips or P60s. The redundancy documentation sent to the second, third and fourth claimant. Mrs Wilson (the first respondent) had no contact with the PCC until after her resignation and the closure of Pre-school and had never met Reverend Clawson, the Chair of the PCC, before the closure of the Pre-school.

[106]The second, third and fourth claimants had had not contact with the PCC or its Chair Reverend Clawson during their employment. The first time they had any contact with him was after their employment ended and he contacted them for information about their employment at the Pre-school.

[107]The claimants made no reference to the PCC in their witness statements, they did not allege that the PCC was or could be their employer in their claim form, witness statements or when they entered early conciliation with ACAS. Ms Conroy, who was also an employee of the Pre-school did not allege in her witness statement or in her response form that the PCC was her employer or the correct employer for the claimants.’ I concluded that Ms Conroy had changed her position when she came to give oral evidence, but agree with Mr Williams submission that her claim in oral evidence that she was partly employed by the PCC and partly by the Management Committee was not possible in law but was also contradicted by the documents. I agree with Mr Williams that she was simply adopting, ex post facto, the arguments put forward by the third and fourth respondent.

[108]I conclude that the first respondent (St Philips Community Centre) was an unincorporated association. It was set up as a club, with members varying from time to time, meeting in the Centre, had its own Constitution and was run by a management committee. There are multiple types of unincorporated associations. As cited in Nazir (paragraph 34), Hughes LJ in R v L and another held that "[11] There are probably almost as many different types of unincorporated association as there are forms of human activity… But the legal description 'unincorporated association' applies equally to any collection of individuals linked by agreement into a group. Some may be solid and permanent; others may be fleeting, and/or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association”.

[109]I conclude, on the basis of my finding of facts, that the first respondent meets this definition. At the relevant time, it was a collection of individuals linked by agreement into a group, with a membership varying from time to time. There was no evidence that the Constitution had been updated or resolved, that the club had been dissolved at any time or its legal status charged. The contemporaneous documents suggest that there were still members of the club in 2021 – Mr Wood refers to the parents of the Pre-school were members and the Management Committee were advised how to membership administration could be avoided.

[110]I do not accept Mr Stenson’s submission that the club was a proprietary club, at least before 2015, conferring the liabilities of the club and the contracts associated with the club on the proprietor. I did not conclude on the basis of my findings of fact that the PCC had considerable oversight of the operation of the Pre-school. As I set out in my findings of fact. It is clear from the documentary evidence, the PCC had a lack of knowledge of the Centre’s affairs, its day-to-day management and a lack of involvement in them. In addition when Mr Wood contacted OFSTED on 30 June 2021, he wrote “ I am the chair of St Philips community centre management committee which has oversight of St Philips Preschool”. (66) Mr Wood also confirmed that the Pre-school was “set up and run by the Centre Management Committee.” (87)

[111]The third and fourth respondents claimed that it was the PCC who had ultimate control of the running of the first respondent, redundancy decisions, the closure procedures, its assets, accounts and monies, however, this was not borne out by the evidence as recorded in my findings of fact. I concluded that the Management Committee was separate from the PCC. When Mr Wood resigned as Chair of the Management Committee, there was a need for a very detailed handover and Mr Wood was asked to provide significant amounts of information about the Pre-School and Centre. The Management Committee operated two bank accounts for the Centre only. Only members of the Management Committee were signatories on this account. The Management Committee records were kept on the Centre’s premises and/or on the Centre’s computer. The PCC did not have access to this computer or the passwords to open it. The PCC needed to be provided with alarm codes, keys, bank and utility records when Mr Wood resigned as chair. The Management Committee paid the Preschool employee salaries direct from the Centre’s bank account and instructed a payroll company to deal with their own employees. It was clear from the meeting notes of notes of the PCC relating to the closure of the nursery and the redundancy payments the lack of control and involvement the PCC had in the affairs of the Centre and the way the Management Committee ran the Pre-school and the Centre. When making redundancies Mr Wood consulted the Management Committee’s advisers not the PCC’s lawyers.

[112]Three Trustees were nominated by the PCC to sit on the Management Committee (225). However, I agree with Mr Williams’ submission that this does not affect the identity of the employer.

[113]The claimants named the unincorporated association as the respondent (the first respondent). Unlike in the civil courts it is permissible for an employee to bring a claim against an employer who is the management committee of an unincorporated association by using the name of the unincorporated association. This was the name of their employer on their wage slips and P60. Having regard to Nazir there is no cause of complaint because the claimants did not name the members of the Management Committee or the Management Committee itself. There are no grounds to strike out the claims on this basis and no such application was made by any of the respondents. I conclude that the correct name for the first respondent, is the Management Committee of St Philips Community Centre and order that is changed to this.

[114]As I have concluded that the claimants were employed by an unincorporated association, they were employed by the Management Committee and the members of the Management Committee from time to time [Affleck as approved by the EAT in Nazir]. The correct respondents are, therefore, the members of the Management Committee at the relevant time (i.e. the time the particular cause of action arose).

[115]Given the complaints being raised by the claimants’ I conclude that the relevant time were the dates of termination for the claimants and the date on which the redundancy payment and notice pay became due – i.e. 21 July 2021 (Ms Wilson’s termination date) and 31 August 2021, which was the termination date of the second, third and fourth respondent and the date on which any outstanding redundancy and notice pay became payable.

[116]I conclude that the members of the Management Committee at the relevant time were Ms S Lloyd (third respondent), Mr S Wood (fourth respondent), Mr Ken Smith, Ms Rita Mills and Reverend J Clawson because:a. Mr Wood did not resign from the Management Committee until 13 September 2021, which meant that he was still Chair of the Management Committee on 21 July 2021 and 31 August 2021;

b. On 16 September 2021, Mr Wood confirmed to Reverend Clawson that the current members of the Management Committee were “Sue Lloyd (Treasurer), Ken Smith (Trustee), Rita Mills”. (87)

c. Ms Conroy resigned from the Management Committee on 24 June 2021 and so was not a member of the Management Committee on 21 July 2021 or 31 August 2021;

d. Mrs Wilson resigned from both her employment and the Management Committee by 21 July 2021 so was not a member of the Management Committee at the relevant time;

e. Reverend Clawson was re-appointed by the PCC to sit on the Management Committee as a Trustee of the St Philip’s Community Centre on 14 July 2021 (225). As one of the three Trustees of St Philips, by virtue of the Constitution of the unincorporated association, he was a member of the Management Committee on 21 July 2021 and 31 August 2021.

[117]There is currently no nominated single individual to deal with the claims/be sued on behalf of the Management Committee. Some members of the Management Committee are not believed to be aware of the proceedings and there is currently disagreement amongst the members. Therefore I conclude that in addition to the first respondent remaining as a respondent:a. The third and fourth respondents, Ms Lloyd and Mr Wood, should remain as named respondents to these proceedings;

b. I agree with Mr Stenson’s submission that Reverend J Clawson should be added as a respondent as he was a member of the Management Committee at the relevant time, having been reappointed by the PCC to sit on the Management Committee as a Trustee of the Centre;

c. Mr Ken Smith and Ms Rita Mills should be added as respondents to these proceedings.

[118]I agree with Ms Conroy’s submission that she should be removed as a respondent to these proceedings as she was not a member of the Management Committee at the relevant time and has been wrongly included.

[119]I also conclude that the fifth Respondent should be removed as a respondent to these proceedings as it was not the employer of any of the four claimants and has been wrongly included.

[120]Pursuant to Rule 34 of the Employment Tribunals Rules of Procedure 2013, I order that the second and fifth respondent be removed from these proceedings and Mr Ken Smith, Ms Rita Mills and Reverend Clawson be added to these proceedings.

[121]A further preliminary hearing will be listed for 3 hours via CVP to discuss the complaints, list the final hearing and, if appropriate, make case management orders. Employment Judge McCarthy Date: 18 August 2023