A v West Berkshire Brewery plc (in Administration) and others: 3322565/2021
EMPLOYMENT TRIBUNALS
Case No 3322565/2021
Between
AClaimantWest Berkshire Brewery Plc (In administration)(R1) B (R2) Hanna Hunter-Flack (R3)Respondent
Before
Employment Judge BansalMr M Mensah (instructed by Counsel) for claimantDate 14 March 2025
JUDGMENT
[1]The Second Respondent’s application to set aside the Order dated 15 December 2023 joining him as a respondent to the discrimination claims fail.[2]The Third Respondent’s application to set aside the Order dated 15 December 2023 joining her as a respondent to these proceedings succeeds. The Order is therefore revoked.
REASONS
[1]This Public Preliminary Hearing was listed to consider to consider applications made by Mr Lucas (hereinafter referred to as “R2”) and Ms Hunter-Flack (hereinafter referred to as “R3”) that they should not have been added as parties to the proceedings by an Order made on 15 December2023. Background Facts[2]The claimant was employed by the respondent, from 1 July 2018 to 25 August 2021. Early conciliation started on 13 September 2021 and ended on 25 October 2021. The claim form was presented on 27 October 2021.[3]The facts relating to the claim commenced with an incident on 26 June 2021, on which day the claimant alleges that R2, who then was the Managing Director of R1 groped her just below the right breast. The claimant complained informally initially to Ms Hunter-Flack (R3). She then entered a formal grievance, having been told that this was the necessary step in order to progress her complaint. In fact, an investigation meeting was held, following which her concerns were dismissed.[4]The claimant was dissatisfied with the manner in which her grievance investigation had been dealt with. She then entered a formal grievance letter, outlining the 26 June incident, as well as her concerns about the way in which her initial complaint had been managed.[5]That grievance was partially upheld, but the respondent did not uphold the specific allegation of harassment. The claimant therefore appealed that decision, and resigned in the same letter, dated 25 August 2021.[6]The claimant claims that she suffered sex discrimination in various forms, and that the respondent’s conduct led her with no alternative but to resign. The complaints made are for constructive unfair dismissal, direct sex discrimination, harassment related to sex, sexual harassment, victimisation and holiday pay.[7]The respondent went into administration sometime in December 2021 and was acquired by Yattendon Brewery on 23 December 2021. No response form has been filed by the respondent. The administrators have given the claimant permission for her to continue with these proceedings. Chronology relating to the adding of R2, R3, R4 & R5 to the proceedings[8]This case has been the subject of two previous private preliminary hearings. The first preliminary hearing was held on 4 October 2023 before Employment Judge Shastri-Hurst. At that hearing the Tribunal considered the claimant’s application made by email dated 21 December 2021 and a follow up email dated 7 January 2022 to add four individuals as respondents, namely R2, R3, R4 (Davina Ford) and R5 (David Bruce).[9]The claimant’s email dated 21 December 2021 to the Tribunal stated, “ I would like to make a request for a rule 50 anonymity order for my case because my case is about sexual assault……….. Additionally I would like to add the respondents listed on my case file that was sent to me. I apologise for making these amendments. I thought I had these additional respondents listed but I do not think I do. I would like to add Tom Lucas, Davina Ford, David Bruce, and Hannah Hunter-Flack…” It is noted this email did not state the case number, which appears to be the reason why there is no physical copy of this email on the Tribunal file. This same email was then sent again on 7 January 2022, this time it contained the case number and is retained on the file.[10]The delay in dealing with this application until the preliminary hearing held on 4 October 2023 was due to an administrative oversight at the Tribunal. This application was discussed but no determination was made by the Judge. The claimant was given further time to consider whether she wanted to proceed with the application or was content to proceed against R1 only. In subsequent correspondence dated 15 November 2023 the claimant confirmed her decision to proceed with the application to add the named individuals as respondents.[11]At a preliminary hearing held on 15 December 2023 Employment Judge Gumbiti-Zimuto made an Order adding R2, R3, R4 & R5 to this claim and that these additional respondents be served with the proceedings. The Judge stated that “the reasons for making this Order are that the named individuals are alleged by the claimant to have been responsible for the various complaints of direct sex discrimination, sexual harassment, harassment related to sex and victimisation that the claimant complaints of in these proceedings.” A private case management preliminary hearing by CVP was listed for 12 February 2024.[12]By email dated 18 January 2024, R2 requested written reasons for adding him to the proceedings. Further by email dated 19 January 2024 the claimant made an application to strike out the claim against him on the basis it is time barred, vexatious and has no reasonable grounds of success.[13]By application dated 30 January 2024, R3 made an application for reconsideration of the Order adding her as a respondent.[14]By application dated 31 January 2024, R4 made an application for reconsideration or to set aside the Order adding her as a respondent.[15]By application dated 31 January 2024, R5 made an application to be disjoined from the proceedings, with an application for a strike out and/or deposit order.[16]By an Order dated 9 February 2024, Judge Gumbiti-Zimuto postponed the hearing listed for 12 February 2024. Further the Judge directed the applications made by R2 & R3 are re-listed for reconsideration without the need for a hearing, and that a copy of the applications are sent to the claimant for any representations.[17]By Order dated 18 March 2024, the Tribunal gave notice of this Preliminary Hearing to consider R2 & R3’s applications that they should not have been added as a party to the proceedings.[18]By a detailed response dated 23 February 2024 the claimant submitted her representations.[19]By Judgment dated 28 February 2024 R4 was released as a respondent to the proceedings. Preliminary Hearing[20]The claimant was in attendance and represented by Counsel Mr Mensah. R2 represented himself. R3 was represented by Miss AL Janabi. Mr Crozier represented R5 (David Bruce).[21]At the start of the hearing Mr Mensah confirmed the claimant had decided to release R5 from the proceedings. Mr Crozier then left the hearing.[22]I was presented with two bundle of documents. The main bundle was of 246 pages. Mr Mensah presented a bundle of 113 pages. In the main both bundles contained the same documents. I did not hear any oral evidence from the named parties. However, the parties made their representations and submissions, which I took into account. The legal framework[23]Rule 29 ET Rules of Procedure 2013 provides for the Tribunal’s general power of case management: “The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order…” 24 . Rule 34 ET Rules of Procedure 2013 provides: “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...”[25]Regarding the joinder of parties, the absence of time limits was clarified in Gillick v BP Chemicals Ltd [1993] IRLR 437. Lord Coulsfield said questions of delay are merely matters to be taken into account by the tribunal in the exercise of its discretion. Lord Coulsfield said at [8], “It seems to us to be clear that the approach set out in Cocking does, as counsel for the appellant submitted in the present case, require the Industrial Tribunal to treat an application to amend an originating application by the addition of a new respondent as a question of discretion and not as one to be settled by the application of the rules of time-bar. The 'time-bar approach', which formed the basis of the decision of the Industrial Tribunal in Cocking, and which was essentially the same as the reasoning of the Industrial Tribunal in the present case, was expressly disapproved by the National Industrial Relations Court. It seems to us that it follows, on these authorities, that there is no time limit which applies as such when it is proposed to add a new or substitute respondent to an application which has been lodged timeously with the Office of the Industrial Tribunals. The question whether an amendment should or should not be allowed becomes, as the appellant submitted, one of the exercise of discretion in the whole circumstances of the case.”[26]This point was further endorsed by the EAT in Drinkwater Sabey Ltd v Burnett [1995] IRLR 238, [1995] ICR 328, when rejecting an argument that the joinder of a respondent after the time limit for making a claim against him has expired should only be permitted on grounds of misnomer—where the claimant has misnamed or misdescribed the party whom he intended to sue, and not where he has mistakenly decided to sue the wrong party, in the same way as the High Court exercises its analogous jurisdiction. The EAT concluded that the High Court rules have no application to the exercise of the tribunals' power to add or substitute parties, a power that is exercisable, in accordance with the principles in Cocking, at any time, even if the relevant time limits have expired.”[27]In Selkent Bus Company Ltd v Moore [1996] IRLR 836 Mummery J said “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”[28]The guidance in Selkent provides for consideration of the nature of the amendment, the timing and manner of it and the applicability of time limits. The key question a Tribunal is asked to determine is where does the balance of injustice/prejudice lie if an application to amend is granted or refused.[29]This is reflected in the Presidential Guidance on Case Management and was recently confirmed by the EAT in Vaughan v Modality Partnership 2021 IRLR 97. Clarification of R2 & R3’s Reconsideration applications[30]At the start of the hearing, R2 & R3 confirmed they had not received a decision to their applications for reconsideration. I explained to the respondents that if they wanted an outcome to their applications, then this hearing would have to be postponed. Both R2 & R3 were given time to consider their position, following which they both decided not to pursue their applications as they wanted this preliminary issue to be decided at this hearing. The parties submissions[31]The parties representations and submissions are summarised below. The claimant[32]In respect of R2, the claimant asserted R2, is an integral part of this claim. He is alleged to have committed an act of sexual assault which a Tribunal could conclude contravened the Equality Act 2010. R2 has not denied the incident. His position is that the interaction was a “playful incident” and denies that he groped the claimant. Hence, there are issues between the claimant and R2 which fall within the Equality Act and jurisdiction of the Employment Tribunal. It is in the interests of justice to have these determined in these proceedings.[33]The claimant accepts that she should have added R2 from the start of the proceedings but did not do so as she was fearful of R2 and the impact it had upon her. She acted promptly in making her application. To prevent the claimant from advancing her claim against R2 would result in significant prejudice to her. She acted promptly in making her application.[34]In relation to R3, who was the HR Manager dealt with the alleged incident of sexual assault. Also she is alleged to have committed acts of victimisation. The claimant disputes the steps taken by R3 were on the direction or instructions of the Directors of R1and/or the appointed legal advisers. R2 submissions[35]R2 presented a detailed submission to the Tribunal dated 25 April 2024, which he relied upon and expanded on at this hearing. R2 has argued that the Tribunal decision to add him to the proceedings, is “ fundamentally and procedurally flawed and extremely prejudicial to him”.[36]The thrust of R2’s submissions is that the claimant could have joined him to the proceedings from the outset and that the reason for doing so now, is because R1 has entered administration. The claimant has not made a mistake in not joining him as a respondent from the outset, and therefore the Tribunal should not exercise its discretion to correct this mistake. R2 referred to the ruling in Cocking v Sandhurst (Stationers) Ltd 1974 ICR[37]The balance of hardship and injustice lies in his favour, for the following reasons.(i) The cogency of the evidence is affected. His recollection of the incident, which happened over two years ago, are vague. Also given that R1 is in administration there will be difficulties in obtaining documents held by R1.(ii) The allegations are extremely damaging to his reputation, character and future career. He therefore will want to be professionally representative but the costs of representation are prohibitive for him.(iii) The application to add him as a respondent has been made out of time by some 4 months from the date of issuing the Claim Form.(iv) The complaints against him are without merit. R3 submissions[38]Miss Al Janabi submitted that R3, as HR Manager, at all times acted on the instructions and direction of the Directors of R1 and senior management and/or upon the instructions and advice given by R1’s appointed legal advisers Addleshaw Goddard Solicitors. She was not a decision maker.[39]R3 was not named in the Claim Form. The allegations against were first made at the preliminary hearing held on 4 October 2023, at which hearing the Judge sought clarification of the individual complaints. The application has been made out of time.[40]Notwithstanding the allegations of victimisation are denied and lack merit, the balance of hardship and injustice lies in her favour because she should not be put to unnecessary expense and worry to defend this complaint; she should not be held personally liable and be exposed to any financial liability for merely carrying out her role in accordance with the instructions and directions received from senior management. Ultimately, R1 is vicariously liable for any finding of victimisation by R3. Conclusions and analysis[41]Section 110 of the Equality Act 2010 permits claims to be made directly against individuals personally for alleged discrimination, victimisation and harassment. I consider that to join R2 & R3 to the Equality Act complaints is a significant amendment as it adds the possibility of declaratory and financial relief against these two individuals.[42]The claimant made an application to join R2,R3,R4 & R5 as individual respondents on 21 December 2021, which was on the same date R1 went into administration. The claimant has contended that she did not know that R1 had entered into administration when she made this application.[43]It is possible that leading up to this date, the claimant may have become aware about the potential change of R1’s legal and financial status and therefore may have come to realise or perhaps was advised that she is unlikely to have an effective remedy against R1, if successful with her claim. Further this may also have been the reason to join in the individual respondents[44]In the email of 21 December 2021, the claimant states, “..I thought I had these additional respondents listed but I do not think I do.” These words could be interpreted as the claimant having made a mistake in not joining the individual respondents when the claim was issued. R2 in his submission submitted that the claimant knew from the outset the basis of the claim arose from the incident with him and that he was culpable. He therefore has argued that the claimant has not made a genuine mistake, and therefore applying the ruling in Cocking and Gillick it would be wrong for the Tribunal to exercise its discretion to allow the amendment to join him to these proceedings.[45]I find the reason to join R2 & R3 was not because a mistake was made in not including them in the claim, but because of the change in the legal and financial circumstances of R1, and the claimant realising that she may have no effective remedy against R1. This is further confirmed by the discussion held at the preliminary hearing held on 4 October 2023.[46]The Tribunal has general and wide discretion to add a party under Rule 34 of the ET Rules of Procedure 2013, if it is in the interests of justice to do so, taking into account the well-established principles in Selkent. Paragraph 16.2 of the Presidential Guidance on Case Management deals expressly, within the context of amendment, with the possibility of joinder of individuals in discrimination claims without any pre-qualification of an earlier mistake.[47]I note many employment claims concerning discrimination have an inherent element of vicarious liability and gives protection to individual employees, in particular, for example where a corporate employer is responsible for the asserted wrongdoing by its employees. Even in unfair dismissal cases, for example, it is the individual investigation, dismissing or appeal officers whose decisions bind the employer and for whom the employer assumes responsibility.[48]The overriding objective should apply equally at this stage where the reason to join named individuals in an Equality Act claim is consistent with a Tribunal’s requirement to deal with cases fairly and justly with regard to the prospect of remedy, if the claimant was to succeed in her claim.[49]In terms of the timing of the application, in the case of Gillick, it was made clear, “there is no time limit which applies as such when it is proposed to add a new or substitute respondent to an application which has already been lodged timeously”. The question of whether to allow an amendment is one which requires the exercise of discretion in the whole circumstances of the case.[50]I considered the balance of hardship and injustice which might be caused to the parties.[51]I first address the issue with R2. I determined that the balance of hardship and injustice clearly favoured the claimant for the following reasons;(i) The claimant has not widened or added any new complaint against R2. There is no prejudice to R2 in being able to respond to the complaints.(ii) R2 in his role as Managing Director was fully aware of the claimant’s complaints against him following the alleged incident on 26 June 2021. He is the alleged perpetrator of the alleged act of sexual assault and discriminatory behaviour towards the claimant. At law he can be held personally liable for claims under the Equality Act.(iii) These are serious allegations. It is in the interests of justice these should be determined in these proceedings.(iv) The claimant’s application was made within a reasonable time following the presentation of the Claim Form on 27 October 2021, and promptly given the date R1 went into administration. This application has been made before any case management orders have been issued. The delay in processing this application has been caused by the Tribunal administration and not by the claimant.(v) R2 will be given permission to present an amended response to the claim. I have noted from the documents contained in the bundle the claimant has provided detailed and extensive statements to the alleged incident and issues with the claimant, as part of the investigation for the grievance process and also in his submissions to the Tribunal. He appears to have a good recollection of the alleged incident. I do not therefore accept his view that his recollection is poor or that the cogency of his evidence will be affected. (viii) I agreed with the claimant that removing R2 from these proceedings would significantly prejudice the claimant as she is unlikely to have an effective remedy against R1, if successful with her claim. Further, the claimant should not be denied the right to a fair hearing and justice. She has the legal right to ensure her complaints against R2 are fully explored and addressed, which without R2’s attendance and participation will not be possible. (ix) Whilst I accept R2 will be exposed to potential liability if found responsible, it is however, in the interests of justice to ensure he remains a respondent to these proceedings given the seriousness of the complaints against him.[52]For these reasons I dismiss R2’s application. R2 therefore remains a named respondent in these proceedings.[53]In respect of the issue of R3, I revoke the Order joining R3 as a respondent to these proceedings. I find the balance of hardship and injustice favours R3 for the following reasons.(i) At all times, R3 was acting in the course of her employment. She was instructed and directed by R1 and its Directors and/or their solicitors. She should be afforded the protection by R1 under the principle of vicarious liability as explained in Para 48 above.(ii) The claimant did not name R3 in the particulars of claim about her alleged conduct towards her or make any allegations of victimisation until at the preliminary hearing. The claim was expanded at this hearing.(iii) Further, I agree with Miss AL Janabi submissions at Para 40 above. Anonymisation Order[54]I noted the claimant’s application made in her emails dated 21 December 2021 and 7 January 2022 for an Anonymisation Order. I also gave consideration to the rights of R2 as there is an allegation of a sexual nature made against him. I considered the relevant provisions and case law, namely Rule 50 Employment Tribunals Rules of Procedure 2013; s11(1)(a)Employment Tribunals Act 1996; Sexual Offences (Amendment) Act 1993; The Convention Rights (Articles 6; 8 & 10) and Fallows & Others v News Group Newspapers Ltd (2016) ICR 801; F v G (2012) ICR 246; and A v Choice Support (2023) EAT 18.[55]In this case the claimant has complained about an alleged sexual offence committed by R2. She therefore has a statutory right to anonymity. Further, I considered that it was in the interests of justice to afford protection to both the claimant and R2’s right to privacy and family life. In doing so, I do not consider this would impinge upon the parties right to a fair hearing or that the right under Article 6 is infringed in any way. I therefore make an Anonymisation Order pursuant to Rule 50(3)(b) of the ET Rules of Procedure 2013, and s11(1)(b) Employment Tribunals Act 1996.[56]I direct that any reference to the claimant in all documents are to be substituted to “A”, and to R2 to “B”.[57]An Order to this effect and case management orders will be issued separately.[1]There were fundamental breaches of the claimant’s employment contract which led to her resignation and that amounted to a dismissal and was an unfair dismissal for which the first respondent is liable.[2]The second respondent engaged in unwanted conduct of a sexual nature and unwanted conduct which amounted to harassment which was a breach of Section 26 Equality Act 2010.[3]In the alternative, the second respondent’s conduct amounted to direct sex discrimination and was a breach of Section 13 Equality Act 2010.[4]The tribunal heard no evidence about the victimisation claim under Section 27 Equality Act 2010 and that claim is dismissed.[5]The claim for holiday pay is dismissed on withdrawal. The anonymity order remains in place.[7]The claimant is awarded the following sums, to which the recoupment regulations do not apply, and for which the first respondent is liable:- Case Number: 3322565/21(1) Basic Award 1.5 x £152.06£228.09(2) Compensatory award £307.50 x 9.5 weeks £2921.25 Minus SSP £248.33£2672.87 Plus loss of statutory rights £300 Total compensatory award £2972.87[8]The claimant is awarded the following sums for which the second respondent is liable:-(1) Injury to feelings (lower end of middle Vento band) £10,000(2) Interest From date of act of discrimination 26 June 2021 to remedy hearing 13 March 2025 Daily rate of £2.19 x 1356 days £2969.64 Approved by