Mrs P Farmer and others v Hinckley Carer Support Scheme and others: 2600109/2019 and others
JUDGMENT
[1]Pursuant to Rule 21 of the Employment Tribunal Rules of Procedure 2013, all of the Claimants as set out in the attached schedule succeed in their claims against the Respondents.[2]The remedy to which the Claimants are entitled will be determined upon receipt of the schedules of loss or at a remedy hearing on dates to be fixed, if necessary.REASONS
[1]The Second, Third and Fourth Respondents were at some point all Trustees of the First Respondent, a registered charity. At this reconsideration hearing the Second, Third and Fourth Respondents (who were represented by Mr Feeny of Counsel) submit that the default judgment against them should be set aside because as at the date that the Claimants were dismissed (in November or December 2018), the Second, Third and Fourth Respondents were no longer Trustees of the Respondent.[2]It is not in dispute that the Second and Third Respondents resigned on 17 August 2018 and that the Fourth Respondent resigned on 13 September 2018. As at the date of the preliminary hearing on 1 July 2019, the names of the Second, Third and Fourth Respondents Respondent were still on the Charity Commission’s register as Trustees. This was taken as prima facie evidence that they remained Trustees notwithstanding any earlier intimation of resignation. In other words the Second, Third and Fourth Respondents were deemed to remain as Trustees until such time as their names were removed from public records.[3]Mr Feeny on behalf of the relevant Respondents relies on Finch v Oak [1896] 1 Ch. 409 as authority for the proposition that resignation from an unincorporated association (which is what the First Respondent was) does not require acceptance and is effective immediately. Accordingly, the relevant Respondents’ resignations were in his submission effective at the date they were given and not subject to any later acceptance or act by the First Respondent or any officer acting on its behalf. If that is correct the Second, Third and Fourth Respondents would have a complete defence to the claim.[4]The Claimants are not legally represented. It has been suggested to them both previously and today that they may wish to seek legal advice as this appears to be entirely an issue of law. In the meantime, and in the absence of any authority contrary to the proposition put forward by Mr Feeny, I am satisfied that the earlier Judgment against the Second, Third and Fourth Respondents should be set aside. CASE NOs: 2600109/19 & others 3[5]Furthermore the Claimants should show cause no later than 21 days from the date this judgment is sent out to the parties why the claims against the Second, Third and Fourth Respondents should not be struck out as they would otherwise have no reasonable prospect of success. If the Claimants are not able to demonstrate that there is a continuing legal basis for the claim against the Second, Third and Fourth Respondents there is no reason for those Respondents to continue to be parties to these proceedings.[6]This reconsideration decision does not affect the judgment given on 1 July 2019 against the First or Fifth Respondents, neither of whom appeared today nor were they represented. The judgment against them therefore stands and is confirmed.[7]Further directions and orders as to the future conduct of the case shall be made after the period stipulated in paragraph 3 of the judgment has passed.