(1) NATFHE (2) MS C OHSAN (3) MR P GREEN (4) MR J RODWELL (5) MISS S PEDDER (6) MS A BUTTERFIELD v MR C HALKIOPOULOS [2002] UKEAT 130_02_0402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 130_02_0402Case No Appeal No. EAT/130/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) NATFHE (2) MS C OHSAN (3) MR P GREEN (4) MR J RODWELL (5) MISS S PEDDER (6) MS A BUTTERFIELDAPPELLANTSMR C HALKIOPOULOSRESPONDENT
Before
Mr Justice LindsayDate 4 February 2002
[1]APPEARANCES For the Appellants MISS S MOOR (of Counsel) Instructed By: Messrs Irwin Mitchell Solicitors 150 Holborn London EC1N 2NS For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) : We have before us an interlocutory appeal in the matter Halkiopoulos against six Respondents, firstly, the union NATFHE, secondly, Ms Ohsan, thirdly, Mr P. Green, fourthly, Mr J. Rodwell, fifthly, Ms S Pedder and sixth, Ms A. Butterfield.[2]This afternoon - and it is now 3:32 - Mr Halkiopoulos is not present. He has indicated that he cannot manage to come here today and we have had to go ahead without him. But the Appellants, all six together, have been represented by Miss Sara Moor.[3]The history is that on 11 May 2001 Mr Halkiopoulos presented an IT1 for racial discrimination and victimisation. It was given a number ending 462/2001. It was remarkably prolix, some 20 pages of close typing. He said that he had earlier sued his erstwhile employer, Kingsway College, for racial discrimination and victimisation and he had asked his union, NATFHE, to help him in that suit. He said:
"During that period I sought my Union's support, advice and help. I do not think that the Union treated my requests for help, or the complaints to them on my part for not receiving it, with the seriousness they deserved."
His IT 1 said: "The main reason to my agreeing to a settlement [because he had settled with that Kingsway College employer] was the lack of any substantial support from my Union. … I strongly believe that my Union actively supported the native British Respondents to my cases" that being, in effect, a complaint based on the fact that Mr Halkiopoulos is not native British but naturalised British.[4]Amongst the individuals mentioned in that very long IT1, as far as I can make out, are all the five individuals I named a moment ago, except Butterfield seems to be called Butterworth in that first IT1. Presumably, there was some deliberate election not to claim relief against those individuals at that stage. At any rate, there was no claim against those individuals at that stage.[5]On 1 June 2001 NATFHE put in its IT3. It denied racial discrimination and victimisation. It took the point, amongst others, that the IT1 was outside the three months' time limit.[6]On 27 July 2001 there was a directions hearing in 462/2001. We do not have details about that but all sorts of directions were given including for particulars.[7]On 21 September 2001 a second IT1, given a number ending 03/2001, was issued by Mr Halkiopoulos. Although it is not entirely clear from the box on the front page of the IT1 that only NATFHE was a Respondent, there is mention further into the body of the matter (and, again, it is long, some 32 pages) of individuals being described as if Respondents. Again, the claim was for racial discrimination and victimisation; this time it was complaining of events after 14 February 2001, which was the date of the last event claimed in the first IT1.[8]On 21 September it would seem (and I say that because we have not seen the letter) Mr Halkiopoulos wrote to the Employment Tribunal asking for a joinder of the further parties, that is to say the individuals, not NATFHE, whom I have mentioned as Respondents.[9]On 1 October 2001 a letter came from the Tribunal that said:
"Thank you for your letter of 21 September 2001. I have noted its contents. A Chairman of the Employment Tribunal, Ms Potter, has asked me to write further and advise that your application to join individual Respondents in the proceedings is granted. Please supply correspondence addresses for these Respondents so they can be served."
[10]The letter was not copied to the then existing sole Respondent, namely NATFHE. That letter was written only in connection with 462/2001, the first of the IT1s. Given that no addresses had been supplied for the new incoming Respondents, they could not be served and, of course, the usual practice in Tribunals is that it is the Tribunal that effects service, so that, for the time being, that decision was not made known to the individual Respondents themselves.[11]On 2 October NATFHE's Solicitors asked the Employment Tribunal to require that, before they were obliged to answer the second IT1, Mr Halkiopoulos should be obliged to specify the particular events complained of. For all its length, the second IT1 was rather unspecific about precisely what events were complained of. That led (and possibly other procedural matters led) to there being a hearing before the Chairman, Mr D.J. Latham, on 5 December 2001. This was inter partes with both Mr Halkiopoulos and NATFHE attending but the other individuals, the five I have mentioned, had not been served and had not attended. Mr Latham said:
"Whilst the first and/or second to sixth respondents may wish to take issue with the granting of the leave to join those additional five respondents, that was not a matter that could be addressed by this tribunal at this stage, firstly because they were not formally a party to these proceedings, and did not yet have a right of representation until the notice of appearance had been filed, but, more importantly, that the decision had already been made, albeit on an interlocutory basis by a chairman, to grant leave for the joinder of those five additional respondents."
And so there would have to be an appearance lodged by the individuals first. Also in the second IT1, No.03/2001, directions were given for Mr Halkiopoulos to give particulars.[12]On 20 December 2001 there was a Notice of Appeal from all six Respondents. It is directed only to Ms Potter's decision. The parties had not seen the decision of Ms Potter until 5 December 2001, which itself, it is to be noted, was some two months after Ms Potter's decision. The first Respondent, NATFHE, had only heard of Ms Potter's decision at 5 December when they were before Mr Latham as Chairman and, presumably, NATFHE passed the knowledge on to the five individuals.[13]On 29 January 2002 Mr Halkiopoulos indicated he would resist the appeal and indicated also that he was unable to attend on 4 February. On 29 January Mr Halkiopoulos lodged a Respondent's Answer. He said that he had always intended to sue the five individuals. He does not say, I think, why he had failed earlier to do so. That brings us down to the present.[14]Looking to the future there has been a directions hearing arranged for 14 February, in a few days time in other words, at which it is hoped that comprehensive procedural directions can be given in order to move forward to the substantive hearing which has been listed to start on 15 April 2002. I am told that that is a date that not only NATFHE but also Mr Halkiopoulos is keen not to jeopardise. That is the background to the matter.[15]The Employment Tribunal Rules do not expressly deal with joinder or misjoinder as such; prima facie, an Applicant can elect who to proceed against when he or she lodges his or her IT1. But the addition of fresh parties, especially after some interval has elapsed and between the lodging of the first IT1 and the seeking to add, is necessarily, as it seems to us, a matter of discretion, a discretion to be exercised by the Employment Tribunal. Relevant factors to be taken into account in the course of the exercise of that discretion must include (and this is not to be thought to be an exhaustive list) the effect on the existing proceedings and the effect on the existing parties of adding the proposed new parties. Does it, for example, add to costs? Is it likely to jeopardise dates that have already been fixed? Ought there not to be some indication of the reason why they were not added earlier, questions such as why were they not added at first and why has there been delay thereafter? What is gained by the addition? If some particular event has triggered the reason for the joinder, has there been delay since that event occurred and what is the attitude of the existing parties to the proposed joinder? There is no indication that Ms Potter had any evidence on any of those subjects before her. Moreover, no reasons are given for the exercise of the discretion. The only indication of what the decision was was that letter which we have read. To that extent there is a Meek v City of Birmingham point as to whether enough information was given in order to be able to judge whether or not there was some error of law in the decision. There was no opportunity given to the existing party, NATFHE, to address Ms Potter before her decision. There was no opportunity given to the prospective new parties to be heard before the order was made.[16]Taking all those matters into account (except the last which, perhaps is excusable because they were not then parties) it seems to us that this decision of Ms Potter has to be set aside as in error of law. We set it aside. We want to disrupt the future conduct of the case as little as possible and so we are therefore anxious to seize the opportunity which the hearing of 14 February gives. So we will give these directions; that if Mr Halkiopoulos wants to rely upon any evidence in support of the joinder of the five individuals, he is to put that into the hands of NATFHE and each of the five individuals by 4:30 pm on 9 February and also to accompany it with any submissions that he wants to make as to why there should be a joinder of those five individuals.[17]Every Respondent - NATFHE and the other five - who wishes to resist the joinder of the five individuals, is to file evidence in answer by 4:30 pm on 12 February and, again, accompanying it with whatever submissions they wish to make on the point. Mr Halkiopoulos is then to be given a right to reply by adding evidence and adding submissions if so advised by 9:30 am on 14 February. It is, inescapably, a very tight timetable but we hope that it is not impracticable and that it will allow the hearing on 14 February to rule upon joinder on the footing of information properly laid before it in evidence rather than by way of an ex parte speculation as to what the evidence might be.[18]We have come to this view on the basis that each of the five individuals as soon as practicable actually lodges an IT3, albeit (perhaps this is a matter for them to be advised upon) one that is merely put in with an expressed view to challenging only whether there should be a joinder. In other words, it need be not fully on the merits, but may simply be on the question of joinder.[19]On the basis that we have set aside Ms Potter's decision, we remit the question of joinder to the Chairman who hears the case on 14 February (or, indeed, if it will then be a panel of three, to the panel of three). That is all we need do at this stage.