Miss L-A MacAskill v Royal Mail Group Ltd and Others: 4106931/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106931/2023

Between

Miss L-A MacAskillClaimant

Royal Mail Group Ltd and OthersRespondent

Before

Employment Judge O’Donnell

Dr Gibson (solicitor) for respondent

lain Malloch for respondent

Date 21 March 2024

JUDGMENT

The judgment of the Employment Tribunal is that the claims against the second and third respondents are struck out under Rule 37(1)(a) of the Employment Tribunal Rules of Procedure on the basis that they have no reasonable prospect of success. ETZ4(WR)

REASONS

[1]The claimant has brought complaints of unfair dismissal and detriment on grounds related to trade union activities against the three respondents.

[2]The respondents all resist the claims brought by the claimant. In respect of the second and third respondents, they argue that the Tribunal has no jurisdiction to hear the claims against them on the basis that the relevant statutory provisions only make the employer of a claimant liable and they are not the claimant’s employer.

[3]The present hearing was listed to consider whether the claims against the second and third respondents should be struck-out.

[4]The claimant did not attend the hearing. There was a delay to the start of the hearing due to unforeseen circumstances but there was no indication that the claimant had been attempting to join the hearing. The Tribunal administration attempted to contact the claimant by phone and email but could not reach her. There was no contact made by the claimant seeking a postponement.

[5]The Tribunal decided that it was in keeping with the Overriding Objective and the interests of justice to proceed with the hearing. There would be an unnecessary delay and expense for the respondents in resolving the issue in question if a further hearing was listed. This might also delay the claim progressing to final hearing given that such a hearing could not proceed until this issue was resolved which would disadvantage all parties including the claimant. It was also unfair to the second and third respondents to leave a potential liability hanging over their heads for a further period of time.

[6]On the other hand, although the claimant was not present to make her case, the Tribunal considered that she had been given ample opportunity to do so. She had been directed at a previous case management hearing to set out the legal basis for the claims against the second and third respondents and had done so. The Tribunal therefore had something in writing to consider when determining the application. The claimant had also been aware of the hearing for some time and, if there was an impediment to her attendance, could have sought a postponement.

[7]The Employment Tribunal is a UK tribunal created by an Act of Parliament (the current Act being the Employment Tribunals Act 1996). The Tribunal does not have an inherent power to resolve all workplace disputes but, rather, is given powers by various Acts of Parliament to determine whether particular statutory employment rights have been breached.

[8]To put it another way, the Tribunal can only hear claims which it has been given the power to hear by an Act of the UK Parliament.

[9]Section 94 of the Employment Rights Act 1996 (ERA) states “an employee has the right not to be unfairly dismissed by his employer” (emphasis added).

[10]The subsequent provisions of the ERA relating to the claim of unfair dismissal all make reference to employer and employee.

[11]Dr Gibson, in his submissions, drew particular attention to the definition of dismissal in s95(1)(c) ERA (“the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct’). He submitted that this shows that the claim requires a contract of employment with any respondent to a claim of unfair dismissal and there was no such contract between the claimant and the second & third respondents.

[12]Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides as follows (emphasis added):- (1) [A worker] has the right not to [be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for [the sole or main purpose] of—a. preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

b. preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, ...

c. preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or]

d. compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

[13]Further provisions of TULRCA relating to claims under s146 all make reference to the “employer”. For example, s148 states that it is the employer who has to show what the sole or main purpose of any act said to be in breach of s146. Similarly, s149 in dealing with remedies states that the Tribunal can make an award of compensation to be paid by the employer.

[14]None of these provisions make reference to any other person being liable for a breach of s94 ERA or s146 TULRCA. This can be contrasted with provisions in other legislation where individual employees can be held liable. For example, ss110, 111 and 112 of the Equality Act 2010 can make individual employees liable for acts of unlawful discrimination. Similarly, s47B(1A) of the Employment Rights Act 1996 makes workers liable for subjecting another worker to a detriment because they had made a public interest disclosure.

[15]The important point is that, in these other instances, there is an express statutory provision that makes the individual employee or worker liable. There is no such express provision in respect of s94 ERA or s146 TULRCA.

[16]In the absence of such an express provision, there is no basis on which the second and third respondents can be held liable under s94 ERA or s146 TULRCA.

[17]The claimant’s case (as set out in paragraph 8 her further particulars dated 13 February 2024) has been advanced on the basis that the actions of the second and third respondents are so serious that the first respondent may escape vicarious liability for them. The Tribunal agrees with the submission of Dr Gibson that the claimant is referring to the “reasonable steps defence” in s109(4) of the Equality Act which can allow an employer to escape vicarious liability for acts of unlawful discrimination. There is, however, no equivalent provision in respect of s94 ERA or s146 TULRCA.

[18]In any event, Dr Gibson made the point that the first respondent has not advanced any such defence and does not consider that such a defence is open to it.

[19]At paragraph 9 of her further particulars, the claimant states that she “cites recent legal cases and legal journals documenting the ‘increasing scope’ of personal liability in the workplace, tested within recent cases both from an employment law and regulatory perspective, to support the inclusion of R2 and R3 within the c/ainf. She does not, however, provide any detail of what authorities she relies on. It may be that she is referring to cases involving claims under the Equality Act against individuals but those involve different statutory provisions.

[20]The Tribunal is not aware of any caselaw which provides authority that individuals (who are not a claimant’s employer) can be liable under s94 ERA or s146 TULRCA. Dr Gibson could not identify any such authority.

[21]In these circumstances, the Tribunal considers that the claims against the second and third respondents have no reasonable prospect of success (indeed, they have no prospect of success at all) and so these claims are struck out under Rule 37(1)(a) of the Employment Tribunal Rules of 5 Procedure. io