MS N SIVANANDAN v (1) HACKNEY ACTION FOR RACIAL EQUALITY & OTHERS (2) LONDON BOROUGH OF HACKNEY & OTHERS [2004] UKEAT 0812_03_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0812_03_0607Case No Appeal No. UKEAT/0812/03/DM & UKEAT/0241/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N SIVANANDANAPPELLANT(1) HACKNEY ACTION FOR RACIAL EQUALITY & OTHERS (2) LONDON BOROUGH OF HACKNEY & OTHERSRESPONDENTSMS N SIVANANDANAPPELLANT(1) HACKNEY ACTION FOR RACIAL EQUALITY & OTHERS (2) MS O HOWELL & OTHERSRESPONDENTS
Before
Mr Justice BurtonDate 6 July 2004
[1]APPEARANCES For the Appellant MS N SIVANANDAN (the Appellant in Person) For the Respondents No Appearance or Representation By or on Behalf of the Respondents (Save for watching brief on behalf of the London Borough of Hackney by: MR SOOR (of Counsel) Instructed by: Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W15 3NL) SUMMARY The first Employment Tribunal erred in concluding that Appellant not entitled to pursue a case that the Respondent was an unincorporated association (with liability on the individual Respondents) and not a limited company: there was no concession by the Appellant, but if there was, it was not binding and/or she should have been released from it. The second Employment Tribunal erred in concluding it was bound by the alleged concession in the first Tribunal and/or the concession was similarly not binding. The Appellant is consequently entitled to pursue the individual Respondents in both Tribunal claims, before one freshly-constituted Tribunal. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Ms Sivanandan against two decisions of the Employment Tribunal. The first is a decision of Mr B C Buckley, given in Reasons handed down on 12 January 2004, after a hearing on 17 November 2003, in which Ms Sivanandan appeared as she always has, and with great ability whenever she has appeared before this Appeal Tribunal, on her own behalf, refusing a review of an earlier decision by a Tribunal chaired by Mr Buckley handed down on 15 April 2002. We shall call the original Decision "the Buckley Decision" and the refusal of the review "the Buckley Review Decision".[2]There is also an appeal against the decision of another Employment Tribunal, also at Stratford, chaired by Mr M F Haynes, after a hearing over 25 days between April and June 2003, in Reasons handed down on 23 June 2003. We shall call this "the Haynes Decision".[3]In both the Employment Tribunal applications, the one which led to the Buckley Decision and the one which led to the Haynes Decision, Ms Sivanandan complained successfully of race discrimination against her. In the first Tribunal, the Buckley Tribunal, she brought claims only against a body called "HARE (Hackney Action for Racial Equality)" and by the end, in circumstances to which we shall refer, one other named Respondent, a Ms Howell.[4]In the Haynes Tribunal she brought claims against HARE, against 5 named Respondents, including Ms Howell and a Mrs White, and also against the London Borough of Hackney. In that case she brought her claim against HARE by reference to two identified Respondents,(1) the Executive Committee of Hackney Action for Racial Equality, and(2) Hackney Action for Racial Equality (a company limited by guarantee).[5]As we have indicated, in both of these two hearings she was herself in person. In the original Buckley hearing HARE, described in that application as the Executive Committee of Hackney Action for Racial Equality, was represented by Mr L Bunbury of Counsel. In the Haynes Decision Ms Howell appeared in person, and Mrs White and the London Borough of Hackney were represented by Counsel, Mr Soor, (who has also attended before us today although on these appeals with no particular locus standi ). There was no attendance, nor representation by any of the individual Respondents other than Ms Howell and Mrs White, nor on behalf of either of the two identified entities of HARE who were joined in the Haynes proceedings.[6]In the first decision, the Buckley Decision, Ms Sivanandan was successful against HARE and Ms Howell and obtained compensation inclusive of interest in a total sum of £15,579.84, apportioned as to £15,079.84 as against HARE and £500 as against Ms Howell.[7]In the second decision, the Haynes Decision, in which the Applicant was successful also, the compensation has not yet been assessed. The decision of the Tribunal was that her complaints against the Executive Committee of Hackney Action for Racial Equality were dismissed, but otherwise that her claims of victimisation under both the Race Relations Act 1976 and Sex Discrimination Act 1975 against all the other Respondents, that is the entity of HARE described as "a company limited by guarantee", the London Borough of Hackney and all the named individual Respondents, was concluded to be well-founded. There is a Remedies hearing to take place in the Haynes Tribunal which has not yet occurred.[8]The London Borough of Hackney appealed the finding of liability as against it to this Tribunal, differently constituted, and that appeal was dismissed at a preliminary hearing on 18 November 2003.[9]Consequently, on the face of it, Ms Sivanandan has in hand an award for compensation of over £15,000 against a body, HARE, which was constituted as a Racial Equality Council, under the aegis of the CRE (the Council for Racial Equality) and under the patronage, to use a loose word, of the London Borough of Hackney. She will also have an award no doubt of measurable compensation in the Haynes Tribunal, but, as she has told this Tribunal previously, the London Borough of Hackney has taken the point that at the Remedies hearing whatever sum is awarded to the Applicant for compensation should be apportioned, on the basis that the finding of liability as against the London Borough of Hackney was on a particular limited basis as they submit; so that it may be that, although of course any compensation award against the London Borough of Hackney will be paid, by the Haynes Tribunal too there will be some separate award ordered otherwise than against the London Borough of Hackney, and perhaps against HARE, of which the only entity that was found liable by the Haynes Decision was the company limited by guarantee, against whom the unsatisfied award of £15,000 in the Buckley Tribunal has also been made.[10]The reason why that award, and any further award, is and is likely to be unsatisfied, is that the company limited by guarantee is in liquidation and/or dissolution and certainly has no funds. So, in relation to an apparently public and responsible body, found at least twice liable for discrimination, and victimisation on the second occasion, against Ms Sivanandan, no sums are going to be recoverable.[11]When Ms Sivanandan sought to enforce the decision in the Buckley Tribunal in her favour, which she believed she had obtained against HARE, described as we have indicated in the Buckley Tribunal as the Executive Committee of Hackney Action for Racial Equality, she sought to do so in the Shoreditch County Court. On 15 May 2003 the Shoreditch County Court declined any enforcement against a Ms Mehmet Ali, who was believed by the Appellant to have means and consequently was the most likely of those individual members of the Executive Committee of HARE against whom she believed she had an enforceable award to be able to make payment. Ms Ali wrote through solicitors a letter of 12 May 2003 pointing out that she had not been a party to the Buckley proceedings nor had been personally represented in those proceedings, and consequently enforcement could not be made against her.[12]So, as we have indicated, on 15 May 2003, an order was made by District Judge Manners in enforcement proceedings brought by Ms Sivanandan against HARE but with a view to enforcement against particularly Ms Mehmet Ali, the district judge refused enforcement, and adjourned the claim generally with liberty to restore in the light of the letter from Ms Mehmet Ali's solicitors, and indeed awarded costs of £150 in Ms Mehmet Ali's favour against Ms Sivanandan.[13]It was that which therefore led to her application to the Buckley Tribunal to review the Buckley Decision insofar as, as will appear in more detail later in this judgment, the Buckley Tribunal had not expressly made an award enforceable against the individual members of the Executive Committee. The Buckley Review Decision, to which we have referred, refused the application to review. Consequently, as we have indicated, Ms Sivanandan was left with recourse only against an entity against which she could not enforce, it being without funds; hence her appeal against the Buckley Decision.[14]So far as concerns the Haynes Decision (to which we will refer in greater detail), it followed the course of the Buckley Decision in making its decision only against the limited company and not against any individuals personally. Consequently, although she succeeded before Mr Haynes, the substance of her appeal in that case too is to seek the opportunity to recover against the individual Executive members.[15]Her appeal against the Buckley Review Decision and against the Haynes Decision came on for preliminary hearing at the occasion on 18 November 2003, the date to which we have referred, when Hackney's appeal against the Haynes Decision was dismissed. There were before the Tribunal on that occasion consequently(i) a Notice of Appeal by the London Borough of Hackney,(ii) a cross-appeal by Ms Sivanandan against the London Borough of Hackney and(iii) a separate appeal by her relating to the HARE point in the Haynes Tribunal – and, to the same effect, the Buckley Review Decision, although that was not strictly before the court on that occasion.[16]It was only on that occasion that it became apparent to this Tribunal (differently-constituted) why it was that Ms Sivanandan was wishing to pursue the case against HARE. The natural understanding of this Appeal Tribunal would have been, at any rate looking at the Haynes Decision, which was all that was before the Tribunal on that occasion, that if the Appellant had a solvent Respondent, such as the London Borough of Hackney, why was she wishing to trouble any further? It was then explained, as we have set out earlier, that she wished to be in a position to claim any balance of the Haynes judgment which she was unable to recover from Hackney against a solvent Respondent, and indeed that there was in the background the Buckley Review Decision. Consequently, on that occasion, the preliminary hearing of her case against HARE was adjourned off as there was insufficient time to deal with it. But in the light of her success in resisting the appeal by the London Borough of Hackney, all other matters as between herself and the London Borough of Hackney were removed and at an end. Her Notice of Appeal, with the advice of counsel, was trimmed down so as to leave only the case that she wished to pursue as against HARE.[17]The case as against HARE in respect of appeals both against the Buckley Review Decision and the Haynes Appeal, then came before this Appeal Tribunal, differently constituted, by way of preliminary hearing, on 23 March 2004. The London Borough of Hackney of course did not appear on that occasion, nor were a party to that hearing, because they were no longer an active party in the appeal, their appeal and any cross-appeal against them having been disposed of. The only matter that was then sent forward to this full hearing was the HARE point, the subject matter of the two appeals, one against the Buckley Review Decision and one against the Haynes Decision, which were consolidated by the order we then made.[18]We refer to the judgment given by me on that occasion as setting out the relevant background, insofar as it does not appeal in full from this judgment.[19]It is consequently the consolidated appeal which has come on for full hearing before us today.[20]Ms Sivanandan sets out her stall, which can most shortly be summarised by reference to a CRE booklet referring to Racial Equality Councils such as HARE. That said in paragraph 2.0 (being the introduction to the leaflet) as follows:
"In the event of a REC being found in breach of employment law by, for example, an industrial tribunal, the Executive Committee would therefore be liable for any subsequent financial award or remedy made against the REC."
That of course is what has not occurred in this case.[21]The background, briefly, is that it seems that at some stage, unknown to the Appellant so far as can be seen, the company limited by guarantee was set up with the same name as the body which had acted, and Ms Sivanandan submits continued to act, as the Racial Equality Council, namely HARE, of which she, at all material times, together with others, was an Executive Committee member. It is that entity which, so far as can be seen from documents registered with Companies House, did exist to the extent that notice of its existence was officially given in that regard, which has been the subject of, in one case, the award and, in the other case, the Liability Decision, to which we have referred, and against which decisions now Ms Sivanandan appeals because she contends that the decisions and award ought to have been made against the Executive Committee, and thus against the individual members of it.[22]The litigation history of the Buckley and Haynes Decisions must be recited so that it can be seen how this eventuality, unwished and, on the Applicant's case, unappreciated by her, came about. The Buckley Tribunal was initiated by an application IT1 dated 13 October 1998 which said as follows:
"THE RESPONDENTS IN THE CLAIM AGAINST HACKNEY ACTION FOR RACIAL EQUALITY (HARE), BY MS N SIVANANDAN, (APPLICANT), ARE AS FOLLOWS: 1. The individual members of the Executive Committee of HARE as follows: [and then names are listed including Ms Mehmet Ali] 2. The members of the Personnel Subcommittee of HARE as follows: [and then again names are mentioned including that of Ms Mehmet Ali] 3. The members of the two relevant appointment panels of HARE as follows: [again names including Ms Mehmet Ali] 4. The Director of HARE, Ms O Howell. (All respondents can be written to at HARE, 18 Dalston Lane, London E8 3AZ)"
[23]The IT3, the Notice of Appearance, in the Buckley Tribunal, was lodged by a Mr Akinsanmi of Hackney Action for Racial Equality on 26 November 1998 and by a letter dated 1 December the Employment Tribunal wrote to Mr Akinsanmi as follows:
"I refer to your Notice of Appearance dated 26 November which I copy to the Applicant with this letter. Could you please confirm whether this Notice of Appearance [is] to be taken as Notice of Appearance for all the respondents on the attached schedule, or if not all respondents which."
There is then a schedule attached which lists, apart from HARE, 14 names including those of Ms Howell and Ms Mehmet Ali.[24]The response by Mr Akinsanmi "for and on behalf of HARE" dated 2 December 1998 reads as follows:
"I write to confirm that the Notice of Appearance is to be taken as Notice of Appearance for all the respondents on the attached schedule."
[25]There was an interlocutory hearing in the Buckley Tribunal on 25 March 1999, the results of which are set out in a Reasons document dated 29 March 1999, in front of Mr Cole sitting alone. In front of Mr Cole there appeared, as was to be usual, Ms Sivanandan in person, and on behalf of what was described as the Respondent, named in the Reasons document simply as "Hackney Action for Racial Equality known as HARE", there appeared Mr Akinsanmi, the correspondent to whom we have already referred, described as Chair of Personnel. At paragraph 2 of the Decision Mr Cole recorded:
"Notice of Appearance was filed by Hackney Action for Racial Equality and received at the office of this Tribunal on 27 November 1998. In subsequent correspondence HARE were to indicate that its Notice of Appearance was filed on behalf of each of the named individual Respondents."
[26]In paragraph 11 there is recorded words which have resonated since throughout the litigation history of these appeals. " The substantive hearing Today Ms Sivanandan again represents herself and [Mr] Akinsanmi the Respondent. Mr Akinsanmi tells me that the Respondent is a company limited by guarantee. He says that he submits the correct Respondent is as listed and that, as is the case with an unincorporated association, individual members of the committee need not be named. Ms Sivanandan says she agrees that proposition which appears to me to be an entirely correct understanding by both parties. Accordingly, I am content that the Respondent before me is correctly identified as Hackney Action for Racial Equality (known as HARE)."[27]There was an appeal by Ms Sivanandan to the Employment Appeal Tribunal. For a number of reasons, good or bad, she believed that Mr Cole had been biased in the way he had treated her. In particular, she was concerned that Ms Howell was no longer specifically named in the application as the result of what had fallen from Mr Cole. The Employment Appeal Tribunal, per Judge Hicks QC, dealt with a number of matters but, for our purposes, the central paragraphs appear in paragraph 5 and 6:
"5 We deal next, having disposed of those two grounds that have been withdrawn, with ground 2. Ground 2 arises in this way. The Originating Application by Ms Sivanandan named as the Respondents the Hackney Action for Racial Equality and then on an attached sheet first a list of individual members of the executive committee of that body, secondly the members of the personnel sub-committee, thirdly the members of two relevant appointment panels and fourthly the director of that body, Ms Howell. The reason why Ms Sivanandan had named all those persons was that she believed that Hackney Action for Racial Equality was an unincorporated association, or at least believed that that might be so, and she understood, correctly, that one cannot treat an unincorporated association as if it were a legal entity and simply bring proceedings including a complaint of this kind against it simply by that name. The persons responsible for the actions of an unincorporated association are the individuals involved, normally the executive committee or whatever is the controlling authority within the body. 6 By the time the hearing before Mr Cole, which is now appealed to us, took place it had been established, and Mr Akinsanmi on behalf of Hackney Action for Racial Equality so informed the Chairman, that Hackney Action for Racial Equality was in fact a corporate body. I think, although it does not matter, that the precise form of its incorporation was that it was a company limited by guarantee and that indeed is what the Chairman records in paragraph 11 of his reasons. It was therefore apparent that the need to refer by name to the individual members of for instance the executive committee totally disappeared and the Chairman deals with the matter in this way, having recorded what he had been told by Mr Akinsanmi:"
Then Judge Hicks sets out a quotation from the passage in paragraph 11 of Mr Cole's decision, to which we have referred, but incorporating in parenthesis his own comments upon it:
"He [ Mr Akinsanmi ] says that he submits the correct Respondent is as listed [ which although somewhat cryptic must mean Hackney Action for Racial Equality ] and that, as is the case with an unincorporated [ sic ] association, individual members of the committee need not be named."

Judge Hicks then continues:

"That must be a clerical error, because for unincorporated associations individual members do need to be named, but the sense is quite clear that the Chairman accepts that this being a company limited by guarantee there is no need to name the individual members of the committee. And then he goes on:"
He then quotes the rest of the relevant paragraph of Mr Cole's decision. Judge Hicks then recites from paragraph 7 onwards the nub of the point that was being made to him by Ms Sivanandan, and which he accepted, namely beginning:
"7. The trouble with that, Ms Sivanandan complains, is that it totally ignores the position of Ms Howell, who was not joined as a member of any of the committees or panels but in her capacity as a staff member, the director, employed by Hackney Action for Racial Equality. Mr Akinsanmi agrees that that indeed is her status."
[28]That was the result of the Employment Appeal Tribunal decision, namely that Ms Howell's name was specifically to be set out in the Originating Application and the eventual hearing, she not being a member (named or otherwise) of the Executive or other governing committees.[29]When it came to the Employment Tribunal hearing before the Buckley panel which began on 25 February to 19 March 2002, in circumstances to which we will refer, the Respondent was named in the decision as:
"(1) Executive Committee of Hackney Action for Racial Equality (HARE) (2) Ms O Howell"
[30]Mr Buckley, in making a finding that the first and second Respondents discriminated against the Applicant and victimised her, set out his conclusions, relevant to what we are considering, in paragraph 1 which we shall recite.[31]Ms Sivanandan tells us that at no time during the course of the hearing before Mr Buckley when the ostensible Respondents, the Executive Committee of Hackney Action for Racial Equality, and Ms Howell on the face of it, were both represented by Mr Bunbury of Counsel, was there any addressing of paragraph 11 of Mr Cole's decision, and that the evidence that was given did not refer to or at any rate grapple with the question as to whether HARE, as the potential employer, was an unincorporated association, an executive committee, or a company limited by guarantee.[32]Mr Buckley said as follows in paragraph 1 of his Decision:
"By her Originating Application presented to the Tribunal on 13 October 1998 the Applicant brought proceedings against the First Respondents, Hackney Action for Racial Equality and on an attached sheet she joined a list of individual members of the Executive Committee as well as the members of the Personnel Sub-committee and members of two relevant appointment panels, as well as the Director of the First Respondents, Ms O Howell. At an interlocutory appeal hearing before the Employment Appeal Tribunal on 20 October 1999 it was accepted that since the First Respondents were a company limited by guarantee, it was not necessary for the members of the organisation to be named (as if the First Respondents were an unincorporated association) and it was confirmed that the named persons would be disjoined [sic] from the proceedings, save that the Applicant wished to and it was confirmed that she was entitled to retain as a Second Respondent the Director of the First Respondents. The allegation against Ms Howell is that she aided and assisted the unlawful acts of race and sex discrimination against the Applicant by the First Respondents."
[33]That is all that was said, relevant to our consideration, by Mr Buckley and, as we have indicated, he went on to find the first Respondents liable for £15,000 and Ms Sivanandan went on to seek to enforce that and failed in her endeavour against Ms Mehmet Ali at the Shoreditch County Court on 15 May 2003, as we have described.[34]The result of her lack of success in the Shoreditch County Court, to her surprise, as we are perfectly prepared to accept, was that she applied to the Regional Chairman at Stratford, Mr Lamb, by letter dated 15 May 2003, telling him of the position, and recording that "The Judge ruled that I needed to return to the ET and obtain clarification on this and if necessary have the ET decision corrected, which is what I now seek to do."[35]Perfectly appropriately, in our judgment, notwithstanding of course that on the face of it such application for a review was out of time so far as Employment Tribunal Rules are concerned, such application was permitted to go forward, given how speedily Ms Sivanandan had acted by writing a letter the very same day as the Shoreditch County Court, and it was that application which came on for the Buckley Review Decision.[36]The relevant paragraph of the Buckley Review Decision reads as follows. At paragraph 8, having referred to the Decision of Mr Cole and cited his paragraph 11, Mr Buckley continues:
"The Applicant was not content with the decision of Mr Cole on several matters and presented an appeal to the Employment Appeal Tribunal, which was heard on 20 October 1999. In her affidavit dated 14 June 1999, sworn in support of the appeal, the Applicant in paragraph 12 set out the following: "
Within the first few minutes of the hearing Mr Cole dealt with the issue of whether HARE was an incorporated association, and as Mr Akinsanmi said it was, Mr Cole said there was no need to list the individuals of the Executive Committee, a point which I accepted. See page 5, point 11 of the written decision. However, at no time did I agree to delete the second Respondent, Ms Howell, from this case, even though Mr Cole has quite improperly deleted her as a Respondent in the written decision"."[37]At paragraph 9 Mr Buckley recites the decision of the Employment Appeal Tribunal, setting out not only paragraphs 5 and 6, but also paragraph 7 (to which we shall return) and then at paragraph 17 he recites the conclusions of his Tribunal on that Review Decision:
"17. This information [that is, about the constitution of HARE] was available to the Applicant from an early stage in these proceedings. However, it is apparent that upon Mr Akinsanmi claiming as he did that the limited company was the correct Respondent, she did not challenge this either in the hearing before Mr Cole in the Employment Tribunal or subsequently in the Employment Appeal Tribunal before Judge Hicks. She was content that the members of the various committees whom she had named when she thought HARE was an unincorporated association should be deleted as Respondents to the proceedings. She was content to proceed on the basis that the proper First Respondents were the limited company, as long as Ms Howell was included as a Second Respondent against whom the Applicant wished to present specific complaints of acts of discrimination for which she claimed Ms Howell was personally liable. 18. The application for review by the Applicant, in effect, seeks to revert to the position which she maintained at the outset of the proceedings, namely that HARE is, in essence, an unincorporated association or should be treated as such and consequently there should be a reinstatement of named committee members as First Respondents. This was the position which the Applicant accepted was not appropriate both before Mr Cole in March 1999 and at the Employment Appeal Tribunal before Judge Hicks and members of the EAT in October 1999. 19. The Tribunal is being asked to allow an application and grant a review which would have the effect of imposing liability on named committee members for the obligations of HARE after the Decision in the case has been promulgated by the Tribunal, without them having had the opportunity of being represented or acting on their own account at the hearing. This clearly would be unfair. 20. We have considered whether there is anything in the circumstances outlined by the Applicant which would entitle her to such a review of the Decision, notwithstanding potential unfairness to the proposed named committee members. We bear in mind that, in the event of a review proceeding, one outcome could be that the Decision would be revoked and the case remitted for hearing before a differently constituted Tribunal. We bear in mind that, in essence, the Applicant wishes the Tribunal to determine whether the corporate veil should be lifted by reason of deception and/or fraud against individual members of HARE. Alternatively, if the company limited by guarantee existed at all material times then the Applicant is asking the Tribunal to determine the question of whether, nevertheless, it would actually have been the organisation to have employed the Applicant, had she not been subjected to unlawful discrimination in the selection process as we have found. 21. Considering the history of this case, we have no doubt that the Applicant failed to raise as an issue before the Tribunal in the hearing from 25 February to 19 March 2002 the matter of whether HARE, as a company limited by guarantee, was correctly named as the First Respondents. It was open to her to do so. The evidence which she seeks to put before the Tribunal in seeking a review was as available to her then as it is now. It is clear that the Applicant was content not to take issue on the point. She only became concerned to have this matter determined when the limited company was unable to meet the obligation to her to pay the monetary award. 22. We are satisfied that in paragraph 1 of our Decision we correctly summarised the effect of the Employment Tribunal Interlocutory Decision in March 1999 and the Employment Appeal Tribunal's Decision in October 1999. We are satisfied that there was no misunderstanding of the position. The Decision of the Employment Appeal Tribunal is supported by the affidavits formed by the Applicant in support of her appeal, which makes it clear that she did not seek the reinstatement of anyone other than Ms O Howell as a Respondent to the proceedings in addition to the limited company. 23. The Applicant confirmed to us that the First Respondent does exist as a limited company on the Register of Companies at Companies' House, having been incorporated on 23 January 1998. She produced the Certificate of Incorporation and, as far as she is aware, the company remains in existence. 24. We do not accept the argument of the Applicant that at the hearing between 25 February and 19 March 2002 we failed to decide the issue of who were the correct First Respondents to the proceedings, namely HARE as the limited company or the unincorporated association. Had the Applicant wished this matter to be determined, it was incumbent upon her to raise it at the outset. She did not do so and we were entitled to conclude that there was no challenge to the position outlined by Judge Hicks, namely that the First Respondents were being proceeded against as a limited company."
[38]The following falls to be set against those conclusions of the Buckley Review Decision. What is the proper construction of what had occurred? So far as paragraph 11 of the Cole Decision is concerned, it recorded two matters. First, it recorded that Mr Akinsanmi told Mr Cole that the Respondent was a company limited by guarantee. Secondly, it records Mr Akinsanmi's submission that the correct Respondent was as listed and that, as is the case with an unincorporated association, individual members of the committee need not be named.[39]Ms Sivanandan is recorded by Mr Cole as saying that she agreed with that proposition which appeared to him to be an entirely correct understanding by both parties. What Mr Cole therefore was recording was Ms Sivanandan's agreement, not being a lawyer but in fact no doubt correct in agreeing the proposition, that so far as an unincorporated association was concerned, although there would be liability on the individual members of the committee, they need not be named. That was the proposition to which Ms Sivanandan was agreeing. There is no express record of her agreeing anything more with Mr Akinsanmi. Indeed, it is difficult to see how she could do so, but she was no doubt relying, as was Mr Cole, on what she was told, that the Respondent was a company limited by guarantee.[40]Her affidavit, which is relied upon in the Buckley Review Decision, is plainly not so straightforward. So far as that is concerned, it is totally apparent what her thinking was, as indeed is correctly recorded by Judge Hicks in the Decision of the Employment Appeal Tribunal, namely that she wanted to ensure that Ms Howell was specifically named as a Respondent, for two reasons. One is because Ms Howell was not a member of the Executive Committee of HARE and, consequently, if it was only the Executive Committee of HARE which was liable, she would not be liable, being simply an officer. Secondly, as Judge Hicks recorded, Ms Sivanandan was concerned to ensure that Ms Howell, as she saw it being the leading protagonist, was liable personally for aiding and abetting the first Respondents, and indeed that is specifically so recorded by Mr Buckley in the Buckley Decision.[41]The affidavit records, as we have recited by reference to its quotation in the Buckley Review Decision, that Mr Akinsanmi had said that HARE was an incorporated association. Ms Sivanandan goes on to say that Mr Cole said there was no need to list the individuals of the Executive Committee and Ms Sivanandan records that she accepted that point. But she then goes on to say that at no time did she agree to delete the second Respondent from the case, even though Mr Cole had quite improperly deleted her as a Respondent, as she submitted, in the written Decision. Her word 'delete' is not of course strictly accurate insofar as it is a reference to Mr Cole's judgment. He was simply saying that she (and others) did not need to be named as a Respondent, but did not take any particular steps to delete anybody, as will hereafter be clear.[42]Her affidavit is not entirely clear, but it certainly records that she accepted Mr Cole's statement that there was no need to list the individuals of the Executive Committee. It does not in terms record her acceptance that HARE was an incorporated association, nor in any way does it record any agreement that the individual members of the Executive Committee should not be regarded as personally liable. The words that she quotes in her quotation, so far as Mr Cole is concerned, is that there was "no need" to list the individuals of the Executive Committee.[43]We turn to the decision of the Employment Appeal Tribunal given by Judge Hicks from which we have quoted (paragraphs 5 and 6). Judge Hicks is not correct to say, as he did in paragraph 6 of the judgment, that by the time the hearing before Mr Cole took place it had been "established" that Hackney Action for Racial Equality was in fact a corporate body. That was simply, as indeed is recorded in the rest of that sentence, a matter of which Mr Akinsanmi informed Mr Cole, nothing more and nothing less.[44]Judge Hicks says that it was "therefore apparent" that the need to refer by name to the individual members of, for instance, the Executive Committee, totally disappeared, and so far as that is concerned those are ambiguous words. It is not clear what the words "totally disappeared" means, but again there is reference to a "need to refer" to the individual members. If in fact the position was that this was unquestionably a limited company, then it is not simply a question of the need to refer by name to individual members disappearing, but it would be a total irrelevance to have any names because they would on any basis not be personally liable.[45]He recognises that Mr Cole's paragraph 11 itself was not entirely clear by accepting the need, by putting the word 'sic' in his quotation from that Decision, to correct the paragraph in one way or another; but certainly Mr Cole, even as so corrected, does not in terms say "as the company is now limited by guarantee the names of the individual members must be removed as they are not liable".[46]What Judge Hicks does do, which is not specifically referred to by Mr Buckley in the Buckley Review Decision, although he does recite paragraph 7 of the Employment Appeal Tribunal judgment in which these words are contained, is to refer to the way in which he is recording that the Appellant at that stage is still putting her case, once she gained her point that Ms Howell should be restored. Judge Hicks records as follows:
"It is true that in the particulars of Ms Sivanandan's complaint she has a general heading of 'Particulars of claim against Hackney Action for Racial Equality' followed by four paragraphs which do make complaints against that body and its committees generally, but then she has a sub-paragraph which deals specifically with the position of Ms Howell as director of that body and it is quite apparent, certainly to anyone familiar with the background legislation, that that is a specific complaint against Ms Howell as an individual and separate from the complaints against Hackney Action for Racial Equality, whether by that name or through committee members ."
Judge Hicks there, in those last few words (which we have underlined) recognises the nature of the claim that Ms Sivanandan certainly had been making, and it is a case which Ms Sivanandan submits she was still and is still making.[47]We turn to the Buckley Review Decision. In paragraph 17 of the Decision Mr Buckley records that the Appellant was content that the members of the various committees whom she had named when she thought HARE was an unincorporated association should be "deleted as Respondents to the proceedings. She was content to proceed on the basis that the proper first Respondents were the limited company". That reads a good deal more into paragraph 11 of Mr Cole's Decision and indeed into Judge Hicks' judgment, than, as can be seen from what we have already said, we think appropriate. As will be seen, the individual members of the Executive Committee were not deleted as Respondents to the proceedings.[48]In paragraph 18 Mr Buckley recorded that her application for review was in essence an application that there should be reinstatement of named committee members as first Respondents; and that, as will again be seen, is not a fair description of the position, so far as the proceedings themselves are concerned. He then continues:
"This was the position which the Applicant accepted was not appropriate both before Mr Cole in March 1999 and at the Employment Appeal Tribunal…"
Once again we think that it takes the matter further than can be accurately assessed to suggest that the Applicant accepted it was "not appropriate" for the individual members to be named. The highest it can be put is that it was said and accepted that there was "no need" for them to be named.[49]In paragraphs 19 and 20 Mr Buckley Mr Buckley plainly and understandably is addressing the position of the individual members of HARE who, as he saw it, would be reinstated as a result of a review application and thus that the review would:
"…have the effect of imposing liability on named committee members for the obligations of HARE after the Decision in the case has been promulgated by the Tribunal, without them having had the opportunity of being represented or acting on their own account at the hearing."
[50]Quite apart from the fact that Ms Sivanandan submits that, at any rate so far as her understanding is concerned, Mr Bunbury of Counsel was acting on behalf of all those Respondents, by acting on behalf of the Executive Committee of HARE, the named Respondent in the Buckley proceedings. In any event Mr Buckley did not appreciate, as we conceive, the intermediate possibility, which is that which has been canvassed before us today, to which we will return, namely not any question of "imposing liability" on the individual committee members but giving the opportunity to Ms Sivanandan to impose such liability, rather than shutting her out entirely.[51]In paragraphs 21 and 24 there is what appears to us to be a potential inconsistency arising in Mr Buckley's conclusion. There does not seem to us to be a clear decision on his part as to whether he is deciding that(1) Ms Sivanandan was bound by a concession or estopped in some way by an agreement, in relation to what had occurred before Mr Cole and the Employment Appeal Tribunal, which is what he appears to have been dealing with in most of his decision, or(2) she is estopped in some way by, as he puts it, having failed to raise the matter during the hearing before him.[52]Paragraphs 21 and 24 appear to suggest clearly that the Appellant could have raised the issue at the outset of the hearing before him in February and March 2002, namely the Buckley Tribunal, and that it was that failure, when she could have in fact have raised it, which was now to be held against her. If that indeed is the basis of his conclusion then that is difficult to fathom. That would suggest that she was not bound by any concession, agreement or conclusion of Mr Cole or the Employment Appeal Tribunal, but only bound by not raising the matter at the Buckley hearing. So far as the Buckley hearing is concerned, it is plain (certainly we are so informed by the Appellant) that at no stage did she appreciate, nor take any step to indicate, that she was not bringing a claim against the Executive Committee of HARE, albeit that the individuals were not named, until she received the Buckley Decision, and even then only when she was unable to enforce in the Shoreditch County Court, and that there is nothing which can be seen to be a concession or estoppel by virtue of the way in which the Buckley hearing itself proceeded in those circumstances.[53]Perhaps the proof of the pudding is in the eating, namely by way of looking at what came before Mr Buckley at the Buckley Tribunal. We have already referred to the IT1 in the Buckley Tribunal. That IT1, which listed the names of the individual Executive Committee members, remained wholly unamended. There was no "disjoinder" or "deletion" of any of those names. The IT1 was never amended. Nor was the IT3 ever amended in any material respect. There was an amendment to the Notice of Appearance, which was served on 28 April 1999, subsequent to the hearing before Mr Cole on 25 March 1999 and indeed receipt of his Reasons dated 29 March 1999. This was served on 28 April 1999. The Notice of Appearance did not by such amendment include a specific case that HARE was a company limited by guarantee which alone was liable if anyone was liable. Paragraph 5 of that amended Notice of Appearance specifically refers to the Personnel subcommittee of HARE, and the need to report back to the Executive Committee of HARE. There is no other reference which could conceivably be said to be relevant to this aspect. In paragraph 7 there was a specific denial that the Director of HARE (Ms Howell) discriminated against the Applicant.[54]The Employment Tribunal served a notice dated 19 November 1999 on all parties relating to the conduct of the Buckley proceedings, which post-dated the decision in the Employment Appeal Tribunal, and was addressed to all the parties to the Buckley proceedings including every single named individual , not least Ms Mehmet Ali. As we have indicated, the Buckley Tribunal decision itself, when it was handed down, still recited the first Respondent as the Executive Committee of Hackney Action for Racial Equality (HARE). There was then a reference to Mr Bunbury of Counsel appearing for the Respondent, so defined.[55]When it came to the Haynes proceedings, to which we shall be referring, which were launched in September and October 1999, after the Cole Decision, (this time as we have indicated making a claim in respect of fresh discrimination against the London Borough of Hackney in addition), once again Ms Sivanandan joined the Executive Committee of HARE and various individual named members of the Executive Committee in both the two applications that she brought, which were subsequently consolidated in the Haynes proceedings; and they remained in the action until the Haynes judgment.[56]In our conclusion, there was no concession by Ms Sivanandan upon which the Tribunal in the Buckley Review Decision was entitled to act, if it did act, so as to conclude that she was in some way bound by it. On any proper construction of what occurred, the Applicant herself did not believe that she was accepting anything other than there was no need to list the individual members and the Employment Tribunal did not 'disjoin' or delete the individual members. Thus, she was entitled to conclude, when it came to the hearing, that any award that she was going to recover would be against the Executive Committee as she understood, albeit that the individuals were not named.[57]We conclude, therefore, that the Buckley Tribunal ought to have addressed, when it came to the Review Decision, against which this is an appeal, correcting that mistake and indeed ought to have corrected it, and allowed Ms Sivanandan to proceed in her claim against the individual Respondents.[58]If there was a concession, then in our conclusion, in the circumstances to which we have referred, Ms Sivanandan should not be bound by it on the one hand, alternatively should be permitted to be released from it. Why do we put it in that way? It is apparent that the circumstances in paragraph 11 arose as a result of what Mr Akinsanmi said to the Tribunal. We have given permission for fresh evidence to be put before us, namely of a draft witness statement prepared by Ms Sivanandan, as she submits, of what Mr Akinsanmi told her in February 2004.[59]This is an unusual course, because of course that witness statement is not signed by Mr Akinsanmi, and it would be on the basis only of our being told by Ms Sivanandan that Mr Akinsanmi did say what he is recorded as saying to her, but was in the event unwilling to sign it, not because he was repudiating it but because he was concerned as to potential consequences, if only because he himself is named in the Haynes proceedings as one of those under potential liability. He, according to that statement, accepted that a letter that had been before the Haynes Tribunal, dated 15 January 2002, as representing a letter from him, was not in fact his letter; indeed he points out to Ms Sivanandan that the letter misspelled his name, which he submits is a wholly unlikely prospect, if in fact it was his own letter.[60]That gives, certainly, credibility to the case that Ms Sivanandan puts forward, that the contents of the Akinsanmi statement on this occasion are correct. It is also material to state that in the Buckley Tribunal itself a similar situation occurred, by way of Ms Sivanandan putting forward – and we refer to page 49 of the Buckley Tribunal Decision onwards – a draft unsigned witness statement of Mr Akinsanmi, upon which she was permitted to rely by the Buckley Tribunal, in circumstances in which they accepted the credibility of what she said. Indeed, it is worth recording that both the Buckley and Haynes Tribunals have at all times fully accepted the credibility and reliability of the Appellant.[61]Insofar as we need, on a limited basis, to take into account what Mr Akinsanmi says in this draft witness statement, which may in fact be of more materiality when it comes to the substantive consideration of these matters in the future, it supports the proposition that the Appellant puts forward, namely that the suggestion that the company was a company limited by guarantee was certainly not put forward on any kind of firm basis, nor supported by any kind of evidence such as to justify the words of Judge Hicks that it was "established" that the company was one limited by guarantee; and supports the account given by the Appellant of what occurred before Mr Cole and indeed before Judge Hicks, both as to whether in fact what she did or said amounted to a concession, or possibly such that it could be said that she was misled into saying anything that she did say.[62]If, however, there was a concession into which she was not misled, accidentally or otherwise, then there is power in the Employment Tribunal which could and should in our judgment have been exercised by Mr Buckley's Tribunal, and which we, on appeal, can exercise, to release a party from such a concession.[63]Ms Sivanandan herself has referred us to Grobbelaar v News Group Newspapers & another [2002] 4 AER 732 and to Hendricks v The Commissioner of Police of the Metropolis [2003] IRLR 96 at paragraph 37. We have referred the Appellant to the case of Gale v Superdrug Stores plc [1996] 3 AER 468.[64]Mr Soor of Counsel, who has attended today simply out of courtesy, not being a party to this appeal, but also because there is later to be dealt with a separate appeal in different proceedings, with which we shall be subsequently dealing, has put before us what he calls a Respondent's Position Statement. While he accepts the proposition that a concession should be clear and unambiguous, and be recorded in some way, with reference to Hendricks – and we have already found that this concession, if concession it was, was certainly not clear or unambiguous – and that the cases such as Gale and Grobbelaar in any event permit the release of a concession where there is no prejudice, he refers us helpfully to the authority of Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 for the proposition that a concession of law cannot be withdrawn where the effect would be to open up issues of fact which should have been dealt with below in the Employment Tribunal.[65]This seems to us to be a rather anomalous situation, assuming that there was a concession at all, because of course the Appellant was not permitted to argue, as it turns out, although she did not appreciate it at the time, from the facts which were, in any event, many, if not most, of them before the Tribunal, that there was individual liability on the members of the Executive Committee and others, because it was subsequently found that she had made a concession, had but not appreciated it.[66]We take the Jones case, together indeed with the case of Gale , as emphasising that the release of a concession cannot and must not be done where it is going to cause prejudice. One example of prejudice would be where a case has run to its end and factual matters can no longer be dealt with.[67]However, this is not a case which has run to an end. It is not a case where, notwithstanding the approach of Mr Buckley in his Review Decision, in which he was concerned there might be prejudice to the individual Respondents, any prejudice need be caused.[68]It is true that as part of her appeal before us, not the main thrust and really only a recent addition to her armoury in any kind of substance, that the Appellant has sought to persuade us that we should make a finding that there was liability on the individual Respondents. That is not a proposition that she can, in our judgment, put forward in relation to the Haynes Decision, to which we are about to turn, but we see the general force of her submission in relation to the Buckley Decision, because her case is that in fact what was happening, for 15 days or so, in front of the Buckley Tribunal is an adjudication, so far as she was concerned, that the individuals were liable, and all she is seeking to do is to restore that position which she understood there to be, and indeed which she sought to persuade Mr Buckley, as she put it, to correct by the Buckley Review Decision.[69]But we are satisfied that there is no basis upon which we could substitute a finding that there is liability on the individual Respondents. There may or may not be such liability. Mr Soor has put before us in his Position Statement, and indeed Mr Buckley anticipated it in the Buckley Review Decision judgment, there are at least two possible ways in which the individuals may be liable, notwithstanding the existence, as appears to be accepted, of the limited company.[70]The first is that the incorporation of the limited company is an irrelevance. The factual circumstance is that the Executive Committee remained liable, as anticipated by the CRE Handbook, at all times and the fact that somebody somewhere chose to form a company is of no relevance, and that the company was not going to be the employer of the Appellant.[71]The second, which Ms Sivanandan recognises is a more difficult task if she wishes to embark upon it, would be to establish that she could and should pierce the corporate veil by asserting, as indeed she does, that the company was set up by deceit and secretly with the aim of avoiding liability, and thereby defrauding her and/or other potential claimants for discrimination.[72]We are in no position to decide whether either of those or any other proposition is made out here, and the most we are prepared to say is that there should now, so far as the Buckley hearing is concerned, be a hearing of whether the discrimination which has been found to have occurred in the Buckley Tribunal was by the individual members either instead of or as well as (if that is a possible finding, and we express no view) by the limited company.[73]That means that there is, in those circumstances, no prejudice to the individuals, or at any rate none greater than the very fact of their being enjoined in the proceedings which they have at all times been since the Notice of Appearance was entered on their behalf in December 1998.[74]We turn to the Haynes Decision, which can be dealt with much more shortly. We have indicated that the IT1s in the Haynes applications related to further and subsequent discrimination by victimisation of the Appellant, and we have referred to the form in which those IT1s were instituted, namely joining the individual members of the Executive Committee.[75]After a reading day on 7 April 2003 the Haynes Tribunal, it seems, utilised the first two days of the hearing for discussion of preliminary matters. Its Decision on those preliminary matters, handed down on 10 April 2003, recorded as follows, at paragraph 5 onwards:
"5. In her Originating Applications the Applicant very clearly stated that the First Respondents were: "1. The Executive Committee (EC) of Hackney Action for Racial Equality (HARE) or alternatively the named individual members of the EC of HARE as at June/July 1999 (in the event that HARE is an unincorporated association."
Whichever alternative is taken, it is clear the Applicant wishes to proceed against the Executive Committee. Both complaints are identical in this regard. Notices of Appearance were entered by "Hackney Action for Racial Equality" without indicating whether that was the company or the association. Indeed it is interested to note that the Buckley hearing proceeded against the Executive Committee and no query was raised about this until the Applicant attempted to enforce the award which that Tribunal gave to her. 6 By the time the matter reached the Directions Hearing on 8 August 2001 the parties were in agreement as to the identity of the Respondents. No objection was taken to the record of that hearing. They were identified as:
"I London Borough of Hackney; II Ms Helen White; III HARE; IV Ms Oliven Howell; V The Executive Committee of HARE."
We should also mention that the Chairman went on to say:
"The Chairman indicated that he had certain reservations about the status of the Fifth Respondents [we interpose that is the Executive Committee of HARE] but this was a matter that could be clarified in the course of the full merits hearing should there be any difficulty in substituting this Respondent party for the named members of the Executive Committee that sat in respect of both of the interviews in question. 7 Both Mr Soor and Ms Howell suggested that the reference to the Executive Committee really referred to the three named members, Mr McLean, Mr Akinsanmi and Ms King. We find this difficult to accept since they were members of the interviewing panel which is considerably different from the Executive Committee, and were identified by the Applicant specifically because they constituted that panel. 8. It is quite clear to the Tribunal the Applicant intended to bring proceedings against the Executive Committee and had separately named the three members of the interview panel precisely because they sat on the panel which failed to appoint her. 9. Throughout the various directions hearings the First, Second, Third, Fourth, Fifth and Sixth Respondents were represented together variously by Mr Akinsanmi, Ms Howell who was then the Director of HARE and ultimately by Mrs Appavoo, who succeeded Ms Howell as Director. At no time was issue taken about whether the Executive Committee was a proper Respondent or that any members of that Committee required separate representation. We were shown a copy of a decision of the Employment Appeal Tribunal in relation to other proceedings which the Applicant had undertaken with HARE. It is not clear which proceedings these related to but it was certain that it was not part of this case. The Applicant is recorded as accepting that HARE was a corporation. However a concession in one set of proceedings is not binding in other proceedings. It is quite clear that the Applicant wished to pursue her claim against the members of the Executive Committee. She believes that they developed the policy which led to her not being appointed. If there is a finding of discrimination, she alleged that they aided and abetted HARE in that and that she has a separate claim against them. The Tribunal appreciates that this may not be the way in which Respondents saw her claim but is quite clear from her Originating Application that she set it out in that way. There has never been any dispute that HARE itself was a Respondent. 10. We found that the Executive Committee and HARE have been identified as Respondents. The difficulty which the Tribunal have is whether the Executive Committee members were aware of the current situation. In the absence of any evidence to the contrary was find that they are. It is clear from the bundle of correspondence that there were Committee meetings at which the proceedings by the Applicant were referred to. This would have brought the matter to the attention of the Executive Committee. If they were not aware they ought to have been and were apparently content to be represented in common with HARE and the named members. The Applicant referred us to a letter sent on 19 March 2003 by Mrs Appavoo [in fact it appears that this was Mr Joseph] to the members of the Committee pointing out that: "
It was HARE's understanding that individual members of the Executive Committee would not be personally liable owing to its status as a company limited by guarantee. Last week however at a Tribunal directions hearing and at a County Court Case Management Conference it was clarified the complaint is against individual members of the Hare Executive Committee." The letter goes on to suggest that members of the Committee should attend this hearing and advise the Tribunal of their position and capacity. It appears from this that the Committee members may have been poorly advised but were aware of their involvement. The Tribunal has no way of knowing whether these individuals are aware of their involvement in these proceedings since HARE has declined to provide details of the home addresses so that they can be served individually. 11. The Tribunal's view is that both Respondents are therefore appropriate and proper Respondents that they were or should have been aware of the situation of the proceedings and that it is appropriate to proceed in the absence of both. 12. The Applicant is reminded that if it should appear that the business of HARE was run by the company limited by guarantee, her claim against the Executive Committee would be under section 31 of the Race Relations Act and would be that they had knowing aided the commission of the discrimination. The Chairman also indicated that in the absence of these Respondents from the hearing she would not be permitted to refer to any evidence which she had not already alluded to to support that claim." That makes the position, as we believe, entirely clear, namely that there is no doubt, whatever may have been the position in the Buckley hearing, that this was an issue to be tried in the Haynes Tribunal and that there would be no trammel of the Haynes proceedings by virtue of any alleged concession in the Buckley Tribunal.[76]However, when it came to the full decision of the Haynes Tribunal, after the 22 days of hearing which followed on after the first three preliminary days, in Reasons handed down on 23 June 2003, the Haynes Tribunal dismissed the claims against the Executive Committee of Hackney Action for Racial Equality, while finding the claims upheld against the 5 named individual Respondents and the company limited by guarantee. The reasons for that conclusion are set out at paragraphs 18.2 and following of the Decision:
"The Second Respondent (HARE) are a company limited by guaranteed and a registered charity. They received funding from the Commission for Racial Equality (CRE) under section 44 of the 1976 Race Relations Act as an organisation whose aim is to promote good race relations within the London Borough of Hackney. They also received funding from the London Borough of Hackney and from other sources. We were taken to the HARE constitution which is dated 1996…and their Standing Orders dated 1997… The constitution makes no reference to the company [not surprising of course because the company at that stage was on any basis not incorporated]. Neither the Sixth Respondent nor any of the other witnesses were able to help as to the relationship between this constitution and the company limited by guarantee. The Sixth Respondent believed that some members of the organisation had been appointed to Directorship and a Secretary but she was not sure. The Applicant points out that HARE's letterhead did not identify their status as a company, and that during her connection with the organisation she never learned of that status. What is clear is that the Second Respondent operated under the Committee system established under the constitution. At A273 is set out a list of the Executive Committee for 1998-1999 and no reference is made therein to any Officers as are required to be appointed under the Companies Act. The Buckley Decision has already established that the Second Respondent is a company limited by guarantee…"
This is a reference to paragraph 9 (i) of the Buckley Decision, which of course took place in the circumstances already described, after the general decision that the Buckley Tribunal had made in paragraph 1 of its Decision as to the effect of the Cole Decision and the EAT judgment. "We are bound by that finding, in the same way as we are bound by the other findings of that Tribunal, even though the Applicant has indicated that she is seeking a review of that part of its decision. We have heard no evidence which persuades us that this decision is wrong. Whilst we might have come to a different decision if we were to make a finding only on the evidence before us we do not find ourselves entitled to undertake such an exercise. There is clearly a company in existence and it follows that it must be the legal foundation of the organisation. We find it to be so. Despite this status HARE operated the committee structure established in the constitution. There is no reason why they should not have done so. This is a matter of internal organisation and arrangement. The decisions of the various committees were the way in which the company reached decisions as to the management of its undertaking. What the relationship between the constitution and the Memorandum and Article of association of the company was, we are unable to decide. We received no evidence on the matter which would have enabled us to do so. Hereafter in this decision, until we reach our final conclusions, we will refer to the organisation generally as HARE, not differentiating between the First and Second Respondents, save where necessary." We think they meant the Executive Committee had become the first Respondent, albeit earlier named as the fifth.[77]In paragraph 18.3 of the Decision the Tribunal records the content of the constitution, or certain parts of it, referring to the Personnel Subcommittee, and then at paragraph 18.4 it continues as follows:
"The Executive Committee, the First Respondent, are identified as a class in the Originating Application rather than individually (although some are also named as individual Respondents). Page A273 identifies the individuals who sat on the various committees and held various offices. We understand that at the material dates, namely the dates when the interviews were carried out, that the membership of the Executive Committee may have changed. No detailed evidence was given to us about that. We are therefore unable to make any finding as to who the individuals of the Committee were at any relevant period."
[78]Then at paragraph 34, dealing with the section 42 aspect of the claim by the Appellant, the Tribunal said as follows:
"The Applicant has argued that the First Respondent, the individual members of the Executive Committee of HARE, should also be responsible. She makes the submission on the basis that HARE is an unincorporated association and that liability accordingly attaches to the managing committee. Our finding that the Second Respondent is the legal entity behind the organisation prevents us from making a finding against the First Respondent that they are vicariously liable for the actions of their employees and agents. There cannot be two employers or principals in these circumstances. We cannot therefore uphold her complaint on that basis. The second way in which the Executive Committee might be responsible is if they had knowingly aided the commission of the unlawful acts… We have already made findings against Mr Akinsanmi, Mr McLean and Ms King who are members of the Executive Committee and those decisions, of course, stand. What we are asked to do is make an order which would involve the remaining members of the Executive Committee."
The Tribunal go onto say that they could not make a finding under section 42 in that regard.[79]We find it very difficult to reconcile the preliminary decision of the Haynes Tribunal, that all was 'up for grabs', if we can use that phraseology, in terms of the hearing before it, and that any concession that may have been made in other proceedings was not binding in the proceedings in question in which, from the beginning, the individual members had been named, with the conclusion that the Tribunal reached in the end, after the full hearing, which is quite clear, namely that they were not approaching that question with a blank sheet of paper. It is plain that, insofar as they considered it at all, they were looking at it on the basis of seeking to be persuaded that something had occurred to unbind them from the findings by the Buckley Tribunal.[80]Insofar as the Buckley Tribunal's findings of fact bound the Haynes Tribunal, the only relevant fact was that finding which is set out in paragraph 9 (i) of the Buckley Decision, that the company by guarantee existed; but insofar as it was a finding that the Haynes Tribunal was bound by some concession in the Buckley proceedings, such as to cause them not to question the issue – indeed to such an extent that they indicated that they "might have come to a different decision" if they were to make a finding only on the evidence before them – this in our judgment was an impermissible course to take.[81]In our judgment the Haynes Tribunal was wrong, as indeed it had already said in the preliminary decision, to regard itself as bound by any alleged concession in the Buckley Tribunal, but it ought to have proceeded with a clean sheet of paper to resolve the issue as to whether in fact the discriminator or victimiser in Haynes Tribunal was the Executive Committee of HARE, and thus its individual members.[82]In any event, we have found that there was no concession in the Buckley proceedings, or, if there was, that the Appellant should be released, and should have been released, from that concession, and so that of itself would flaw the basis upon which the Haynes Tribunal reached its conclusion and justify reconsideration by the Haynes Tribunal.[83]In those circumstances we are satisfied that the issue as to whether in the Buckley proceedings there was individual liability on members of the relevant Committees of HARE for the discrimination found by the Buckley Tribunal, and in the Haynes proceedings whether there was discrimination by such individual members, should now be tried.[84]We should conclude with some specific points:(1) The Appellant has sought to reopen an issue which was, in our judgment, foreclosed at the preliminary hearing in November 2003, namely a cross-appeal relying on alleged continuing acts as against the Hackney Borough Council. Not only was it foreclosed by the conclusion of that hearing, and by the deletion from the Notice of Appeal of the relevant grounds, but further her cross-appeal in that regard did not proceed because it had been abandoned, as clearly confirmed by what took place before this Appeal Tribunal in March, when the only surviving appeal she had in the Haynes proceedings went forward, and has come on before us. Consequently, London Borough of Hackney has not been a material party, and her application to reinstate paragraph 6 (c) of her Notice of Appeal must be refused. However, contained in that paragraph was a case not only involving the Hackney Borough Council, but also as against HARE, based on alleged continuing acts. We have not considered the substance of that ground, or indeed of her case against HARE at all. We simply wish to make it plain that in indicating, as we have, that her case should now be permitted to go forward and be reheard, that there was discrimination by HARE, namely by the individual members of the relevant committees, that her case should not be trammelled by the findings of the Haynes Tribunal, but that she should be entitled to bring, against those individuals, a case not presently adjudicated upon, being such case as falls within the confines of her Originating Application and the evidence in that case, i.e. it should not be widened by anything that is in paragraph 6 (c) of her Notice of Appeal, but insofar as what was in paragraph 6 (c) of her Notice of Appeal already fell within the Haynes proceedings, but now is to be relied upon to establish discrimination or victimisation by the individual members, she should be entitled to adopt that and have that as part of her case, notwithstanding the way in which the Haynes Tribunal dealt with it as against the London Borough of Hackney.(2) Secondly, we have already made it entirely clear that it is a fundamental part of our judgment that we are expressing no view as to the outcome of the proceedings, nor indeed, a fortiori, reaching any conclusion as to the liability of those individual members who will now be the subject matter of proceedings in the Employment Tribunal. We are simply concluding that the Appellant will now be entitled to bring those proceedings and have them adjudicated upon, notwithstanding the alleged concessions.[85]The issue remains as to how the hearing which we have directed should take place. The Appellant has expressed her lack of confidence in the way she has been treated to date. We do not see in any way in what has occurred so far any kind of evidence of institutional bias or anything of that kind. The history really has grown by accretion and what began by what we believe was a misunderstanding before Mr Cole and a further misunderstanding before the Employment Appeal Tribunal has simply grown like Topsy. In any event, we have every expectation that the outstanding Remedies hearing will be carried forward with all proper justice and concern by the Haynes Tribunal.[86]It must be emphasised that both the Buckley Tribunal and the Haynes Tribunal have accepted, as we have earlier indicated, both the credibility and the reliability of Ms Sivanandan and, although of course she has not actually received a penny piece of compensation yet, subject to whether she managed to get the £500 out of Ms Howell, as to which we are not informed, she has won the proceedings she has brought. Although, of course, it is an important part of justice that successful applicants should be entitled to enforcement, it should not – and we hope does not – take away from the confidence that she ought to have in the determinative power of British justice.[87]Nevertheless, we are persuaded that this new hearing should take place before a different Tribunal, and indeed Mr Buckley really anticipated as much, in the passage from the Review Decision, to which we have referred. The real reason we take that course is because the substance of the Buckley case and of the Haynes case will now have to be heard together, and rather than have one of the two Chairmen, with different members, no doubt, in any event, hearing what in fact occurred before another Chairman, it is in our judgment far more sensible that there now be a new Tribunal which will concentrate wholly on the issue in relation to the Buckley Tribunal as to whether the discrimination found by the Buckley Tribunal was by the Executive Committee, i.e. the evidence so far as the Buckley Tribunal is concerned will simply go to the identity of the relevant Respondent, an issue which for various reasons has never been considered by the Buckley Tribunal; and so far as the Haynes Tribunal there will be that issue coupled with the question as to precisely what victimisation or discrimination occurred at the hands of such individual Respondents if any. That is best carried out, in our judgment, by a fresh Tribunal, guided by this rather lengthy judgment from this Appeal Tribunal.[88]In those circumstances Ms Sivanandan's appeals against the Buckley Review Decision and the Haynes Decision are allowed and there will be a hearing of her case against the individual Respondents before a freshly-constituted Tribunal.