MR A K N OLLENNU v (1) MISS A WIAFE (2) MRS Z K MYRIE (3) MR E MAGBA-KAMARA [2005] UKEAT 0460_03_1003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0460_03_1003Case No Appeal No. UKEAT/0460/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A K N OLLENNUAPPELLANT(1) MISS A WIAFE (2) MRS Z K MYRIE (3) MR E MAGBA-KAMARARESPONDENT
Before
His Honour Judge J BurkeDate 10 March 2005
[1]APPEARANCES For the Appellant MR A K N OLLENNU (the Appellant in Person) For the First Respondent For the Second Respondent For the Third Respondent MR M REED (Representative) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ MRS Z K MYRIE (Debarred from defending appeal) MR E MAGBA-KAMARA (the Respondent in Person) SUMMARY Sex Discrimination – and - Race Discrimination(1) Procedural irregularity. Respondent appointed representative of unincorporated association without notice to him or others; judgement against him personally set aside.(2) Respondent held vicariously liable for discrimination by an employee X , also a Respondent. X later has finding of discrimination set aside on review, whether finding against Respondent can stand – answer no. HIS HONOUR JUDGE J BURKE QC This Appeal and the Parties to it This is an appeal by Mr Ollennu against a decision of the Employment Tribunal sitting at Watford, chaired by Mr Mahoney and sent to the parties with extended reasons on 31 December 2002. The delay between the decision of the Tribunal and the hearing of this appeal is unusual but is due to the need for the appeal to await the outcome of various reviews of the Tribunal's decisions, or applications for review of the Tribunal's decision to which we will refer later.[2]Before the Tribunal there were two applicants; Miss Wiafe and Mrs Myrie. Each claimed that she was owed unpaid salary, unpaid holiday entitlement and pay in lieu of notice after her employment by the Barnet Racial Equality Council (which we shall describe as "the Council") ended on 31 st July 2001.[3]Subsequently, as we will explain later, Miss Wiafe claimed that she had been the victim of sex discrimination by the Council, the actual discriminator, as she claimed, being the Council's administrator, Mr Magba-Kamara.[4]Mrs Myrie claimed that, in addition to her contractual claims, she had also been a victim of discrimination, in this case racial discrimination, by Mr Magba-Kamara.[5]The Tribunal found that Miss Wiafe was entitled, on her contractual claims, to a total of £1572.22 together with some interest against Mr Ollennu and that Mr Magba-Kamara had been guilty of sex discrimination for which Mr Ollennu was vicariously responsible; they awarded against Mr Ollennu compensation for injury to feelings in the sum of £2500.00 and compensation by way of aggravated damages of £1250.00.[6]Mrs Myrie was awarded on her contractual claims a total sum of £2924.30 against Mr Ollennu; and the Tribunal found that Mr Magba-Kamara was guilty of racial discrimination against Mrs Myrie and awarded against both Mr Ollennu and Mr Magba-Kamara £7500.00 in total by way of compensatory and aggravated damages, plus interest.[7]The basis on which Mr Ollennu was held responsible for the discriminatory acts of Mr Magba-Kamara against Miss Wiafe is expressly set out in Paragraph 11 of the Tribunal's decision. It is said that he was, in effect, vicariously responsible for these acts The basis on which Mr Ollennu was held responsible for the discriminatory acts of Mr Magba-Kamara against Mrs Myrie is not expressly set out in the decision but can be taken as being the same. No allegation was made that Mr Ollennu himself had been involved in any of the acts of discrimination or that he had aided Mr Magba-Kamara or was otherwise personally responsible for what had happened.[8]Both Respondents, Mr Ollennu and Mr Magba-Kamara, were unhappy with those decisions. Neither of them, for reasons to which we will come, was present before the Tribunal. On 22 January 2003 the Tribunal rejected an application by Mr Ollennu for a review. He had contended that he had not been aware of the proceedings and that, although he had not appeared at the Tribunal's hearing because he believed he had been debarred by the Tribunal some months before, he should not have been so debarred. The Chairman decided that his application had no merit, that Mr Ollennu knew all about the hearing and that the debarring order was appropriate.[9]Mr Magba-Kamara also sought reviews. To some extent he was more fortunate or, at least, more successful than Mr Ollennu. He sought a review of the decision as to discrimination made in the case of Miss Wiafe. That application for a review failed because the Tribunal held that he was a not a party to Miss Wiafe's claim; and it is clear from the paperwork that he was never named as a party as such. It has been canvassed before us today that, because the two claims were consolidated, he thus became a party; but that is not really an issue for us to decide, however unlikely that assertion may be.[10]Mr Magba-Kamara did not seek to appeal against the rejection of his application for a review in Miss Wiafe's case (and there is no such appeal before us). We can understand how Mr Magba-Kamara feels some distress at the facts(i) that a finding that he was a discriminator was made against him in circumstances in which, for good reason, he was not present and(ii) that he can do nothing about that finding; but we in our turn can do nothing, in the absence of an appeal, to reverse the finding of the Tribunal whereby his application for a review was rejected.[11]He was however more successful in his application for a review against the finding made against him and the orders made against him in relation to the claims of Mrs Myrie. Those findings and order were set aside on the basis that he had not been served at his own address with the proceedings, or with the originating application for that matter. That is why he was not present at the hearing before the Tribunal on 27 November 2002; he had had no opportunity to give evidence or to challenge, the evidence given by Mrs Myrie if he wished to do so.[12]Subsequently, Mrs Myrie's claim that Mr Magba-Kamara had been guilty of discrimination against her was reheard by a differently constituted Tribunal; and it was rejected. That Tribunal found that, in so far as Mr Magba-Kamara had acted as Mrs Myrie alleged, he had not been guilty of discrimination; and in respect of some of her allegations they found that what she complained of had not happened. It is not necessary to go into further detail. Thus Mr Magba-Kamara now has no orders against him so far as Mrs Myrie is concerned. The only order against him has been set aside on his application for a review; and the only claim against him as a party failed when the matter was re-heard on its merits, this time with Mr Magba-Kamara present and represented.[13]It follows that Mr Magba-Kamara, who is a Respondent to this appeal, actually has no interest in it in a strict sense, although no doubt he is interested in the outcome as an observer. He has not sought to address us on the issues which we have to decide.[14]Mrs Myrie does have an interest in this appeal, for two reasons. Firstly the Tribunal ordered Mr Ollennu to pay her a total of just under £3000.00 in respect of her contractual claims; and secondly, of course, she has against Mr Ollennu the benefit of the order that he pay her, on the basis of vicarious liability, the compensation awarded to her as a result of Mr Magba-Kamara's racial discrimination against her, which discrimination subsequently the Tribunal has found did not take place. She has been debarred from taking any part of this appeal by an order of the Registrar made on 1 March 2005 because of her failure to file an answer to the Notice of Appeal or to respond to an order of this Appeal Tribunal made on 18 February 2005; and she has not appeared today. We do, however, have before us today Mr Ollennu, who we are told happens to be a practising member of the Bar and who has appeared on his own behalf, and Mr Reed of the Free Representation Unit on behalf of Miss Wiafe.[15]Mr Ollennu was in default of the Employment Appeal Tribunal's requirement that he should lodge a skeleton argument and chronology for this appeal no less than 21 days before this hearing. He was so required by the Practice Direction of this Appeal Tribunal; and he was in any event so ordered in Paragraph 8 of the interlocutory order of this Appeal Tribunal, made on 10 June 2003 when this appeal was permitted to go to a full hearing. Miss Wiafe's skeleton argument was sent to him on 16 February by the Free Representation Unit. They sent a chasing letter; and on 4 March, not having seen a skeleton argument from him, they made an application to this Appeal Tribunal that Mr Ollennu be debarred for failure to put in his skeleton argument. On 28 February Mr Ollennu wrote to the Employment Appeal Tribunal explaining the delay. His skeleton was delivered to the Employment Appeal Tribunal on 7 March, that is to say on Monday of this week. Mr Reed this morning renewed or supported his original application that Mr Ollennu should be debarred. However, he was fair enough to admit that he had had time to respond to Mr Ollennu's skeleton in so far as it related to his client (he represents Miss Wiafe and not Mrs Myrie) and he has taken the opportunity to put in a supplementary skeleton. Although we have expressed our considerable displeasure at the delay, which Mr Ollennu as a member of the Bar ought to have known better than to allow to occur, we have permitted Mr Ollennu to proceed with his appeal despite the lateness of his skeleton argument. The Tribunal Proceedings[16]It is now necessary to turn to the history of these proceedings. In the case of Miss Wiafe her originating application was dated 9 August 2001 and was lodged then or soon thereafter. In box 1, in which she was asked to detail the type of complaint she wanted the Tribunal to decide, she said that she wanted the Tribunal to decide "unfair dismissal, loss of earnings, seeking July salary and one month notice period salary pay". Nothing has happened about unfair dismissal, no doubt because Miss Wiafe did not have the necessary qualifying period of employment. In that box she did not refer at all to race discrimination. In Box 11, where she set out details of her complaints, she explained how she put her contractual claims but said nothing about discrimination. In Box 5 she was asked to give the name and address of her employer; she said that he was Mr Ollennu and, in brackets afterwards, "Chair of BREC"; she gave Mr Ollenu's private address. She also gave the place where she worked as the Council's address at 1 Friern Park, in Finchley; and she said that she was the administrator for that organisation.[17]Mrs Myrie's originating application, lodged on 28 September 2001, put forward both her contractual claims and her claim for racial discrimination. Her expansion of the facts which supported her complaints is lengthy, and we do not propose to go through it; but in particular she said:
"Racial discrimination. Administrator told by the Director not to trust the Company secretary and me because we were both West Indies."
She said, in Box 5 of her application, that her employer was the Council and gave the Friern Park address. There is no reference on the face of the first page of her IT1 to Mr Ollenu.[18]Because he had been named in Ms Wiafe's IT1, Mr Ollenu was served with it; and he put in an IT3 on 5 September. In that document he said; that the full name and address of the Respondent was the Council at the Friern Park address; and then he said, by way of detail, this:
"I am the Chair of Barnet Racial Equality Council at 1 Friern Park, Finchley. I have no authority to receive this action on behalf of the Council and I am not personally liable for the applicant. Accordingly I take the point that there has not been proper service. 2) Further and/or alternatively I am not the proper Respondent, neither is my private address the proper place of service. 3) The Council is a charity and is funded by the CRE for the salary of the Director and the London Borough of Barnet for administration and for the applicant's salary and one other salary. The posts are subject to funding and the applicant knew this. The London Borough of Barnet decided to withhold funding and accordingly the job had terminated. Then he goes on in Paragraph 6 to say that the applicant was on a probationary period; and in Paragraph 7 he says: "
Could the Tribunal please deal with the and the proper parties on the preliminary issue here and if allowed can my name and private address be removed?" He was also served with the IT1 in Mrs Myrie's case to which he put in a response again saying that the Respondent was the Council; and in brief, he denied that there had been any wrong-doing.[19]We infer that it was as a result of the terms of Mr Ollennu's IT3 in Miss Wiafe's case that, on 26 September 2001, the Tribunal wrote to Miss Wiafe a letter headed "Miss Wiafe v Barnet Racial Equality Council" as follows:
"The Chairman Mr Garnon directs that you will note that there are two preliminary points raised 1) Do you agree your employer was "
Barnet Racial Equality Council"? 2) Do you contend that your dismissal had anything to do with your pregnancy? if so on what basis?[20]There was no immediate reply to that letter; a chasing letter was sent; and eventually Miss Wiafe replied on 13 November 2001, also under the heading "Miss A Wiafe v Barnet Racial Equality Council". We do not need to read out all of that letter. In it she made it clear that she was alleging that she had been discriminated against on the basis that she was pregnant and, thus, was alleging sex discrimination. She made no objection to the point that her employer was not Mr Ollennu but Barnet Racial Equality Council; and it was clearly open to the Tribunal to infer from her letter that she was accepting that the Council were her employers. It seems that the Tribunal did so infer, because, on 10 January 2002, the Tribunal wrote again to Miss Wiafe; the same title was on the letter as that to which we have already referred and seems to have been used from this time of all or the letters sent out by the Tribunal in these cases; the Tribunal said:
"Your letter dated 13 November 2001 has been referred to a Chairman of the Tribunal Mr Postle who has agreed to the Originating Application being amended as requested. The amended form is being copied to all parties. "
[21]Nobody seems to have that amended form or to know quite what it contained; but we take it, and it has not been suggested to the contrary by anyone, that what then happened was that Miss Wiafe's original application was deemed to be amended so as to allege sex discrimination and so as to name the Council as the Respondent. That is clearly what Mr Ollennu thought had happened; and we can understand why he did.[22]Thus, at last, Mr Ollennu ceased to be a named Respondent in Miss Wiafe's case; and, so far as Mrs Myrie is concerned, he never was a named Respondent in her case. In her case the Respondent always was the Council; but in one way or another Mr Magba-Kamara became a party to her claim, although it seems that, until the decision was served on him, he did not know that that was so. It is not clear to us how he became a party. Fortunately and eventually that problem has been unravelled in the manner which we have described. Mr Ollennu, as a result of the events we have described, reasonably believed that, in a personal capacity, he was no longer involved in Miss Wiafe's claim; and he was never so involved in Mrs Myrie's claim.[23]It does not seem that the Tribunal responded in any way other than that which we have described to Mr Ollennu's suggestion that there should be a preliminary issue. No other member of the management committee of the Council (nor the Council itself) was ever served with any papers so far as we are aware; nor was any other member present at any of the hearings which we have mentioned in this judgement so far. What happened thereafter was that directions and letters were sent by the Tribunal to 1 Friern Park; but by that time it appears to be common ground that the Council was in turmoil and had ceased effectively to function. It was accepted by the Tribunal, at Mr Ollennu's application for a review in January 2003, that he did not get any of the correspondence. The Tribunal knew his private address; it was on Miss Wiafe's IT1; but, no doubt because of the change in the name of the Respondent in Miss Wiafe's case, they did not send anything to Mr Ollennu thereafter. However, it seems from what Mr Ollennu has told us (which has not been tested but may be right) that somebody, possibly from the London Borough of Barnet who were co-funders of the Council together with the Commission for Racial Equality, informed the Tribunal that they were sending correspondence for the Council to 1 Friern Park, which address the Council was no longer using, when it ought to go to Mr Ollennu; and in July 2002 the Tribunal wrote to Mr Ollennu, sending him all the correspondence which had been sent previously to the Council; he was given time to respond to the suggestions from the Tribunal that there should be a debarring order; it was made clear that if he did not respond in time he would be debarred. He (or, more correctly we think, the Council) was debarred in a situation in which he thought that he was no longer an active Respondent in any event.[24]At last the claims came to a hearing on 27 November 2002. Both applicants appeared in person. Nobody appeared on behalf of the Council; and Mr Magba-Kamara, who had not been served with anything, did not appear. Mr Ollennu who did not think that he was exposed to any personal liability, also did not appear.[25]At Paragraph 1 of the extended reasons for their decisions the Tribunal said this:
"The correct 1st Respondent is Mr Ollennu who at all material times was the Chairman of the Barnet Racial Equality Council. The First Respondent is a practising barrister and resides at 121 The Vale, London NW11. This First Respondent lodged Notices of Appearance in both cases. However the First Respondent was struck out by order dated 8 August 2002 in respect of both Applicants for failure to comply with the Tribunal's directions promulgated on 30 April 2002"
[26]The decision itself sets out in its heading that the Applicants were(1) Miss A Wiafe and(2) Mrs Z K Myrie and that the Respondents were (1) Mr A Ollennu Chairman of the Management Committee of Barnet Racial Equality Council and (2)Mr E Magba-Kamara.[27]In Paragraph 3 of their decision, as opposed to their reasons, the Tribunal expressed their orders in these terms: 1) "the first Respondent is therefore ordered to pay the first applicant the sum of £6000.00"; 2) "the first Respondent is therefore ordered to pay the second applicant the sum of £3500.00."[28]It should be noted that the orders were not made against the members of the management committee for the time being or against "the first Respondent" but against the first Respondent i.e. Mr Ollennu, on behalf of the members of the management committee for the time being without any reservation as to the nature of his liability, and against both Respondents, i.e. Mr Ollennu without any such reservation and Mr Magba-Kamara. Vicarious Liability for Mrs Myrie's Claim 29. Mr Ollennu's Notice of Appeal dated 11 February 2003 raises a number of grounds which cover a number of different areas. It is however, for present purposes necessary to refer to only two. The first is Ground 1; the second is Ground 12 which we have today permitted to be added by amendment. Ground 12, which we have not seen in written form from Mr Ollennu because he drafted it on the hoof while in the course of his submissions to us, wrote it in his notebook and then dictated it to us, is in these terms, that the decision that Mr Ollennu was vicariously liable for the racially discriminatory acts of Mr Magba-Kamara cannot now be sustained as it has been found by a Tribunal after a full hearing that Mr Magba-Kamara did not discriminate against Mrs Myrie as alleged or at all.[30]Mr Ollennu foreshadowed this argument in his skeleton; and it has to be said that the members of this Appeal Tribunal were not at all surprised that Mr Ollennu sought permission to amend to add this new ground. It asserts, in effect, what is perhaps obvious, that as a result of the decision in Mrs Myrie's case, at the second hearing of her claim for racial discrimination, that that claim failed, there is nothing left by way of discriminatory act on the part of Mr Magba-Kamara against Mrs Myrie for which Mr Ollennu could be held vicariously liable, or in any other way liable, for instance as an aider under section 33(1) of the 1976 Act.[31]Therefore Mr Ollennu submits and we agree that he must succeed in his appeal at least in so far as the award of compensation to Mrs Myrie for discrimination is concerned. Mr Ollennu could not have made this point in his original Notice of Appeal because the second decision on the merits of Mrs Myrie's discrimination claim was not sent to the parties until 28 September 2004. He should have applied to amend earlier to put forward his new ground; but it would be a wholly erroneous exercise of our discretion not to permit him to make that amendment now so that he can put forward a ground of appeal which, as we see it, must inevitably be successful and to leave him, by refusing to exercise our discretion in his favour, with a vicarious liability for acts which the Employment Tribunal has conclusively established either never happened or were not discriminatory if they did happen.[32]On the other hand Mrs Myrie has been debarred from taking part in this appeal because she did not put in an answer to the Notice of Appeal, which Notice of Appeal did not have in it the new ground 12.[33]It may be that she or anybody who has advised her saw the point coming; but we cannot speculate as to that. We have considered adjourning this part of this appeal; but that would lead to substantial further delay and potential expense and inconvenience which can perhaps be avoided; we have therefore decided to allow the appeal in so far as the Tribunal held Mr Ollennu vicariously liable for Mr Magba-Kamara's discrimination against Mrs Myrie, subject to Mrs Myrie's having the right within 14 days of the sending to her of a transcript of this judgement, which we direct to be sent to her, to set aside this part of our order on this appeal on to apply for a review under Rule 33 of the Employment Appeal Tribunal Rules.[34]By so doing we are extending her time to apply for a review because, usually, that time is 14 days from the order; but we suspect that the order will be sent out before a transcript of this judgement is available; and Mrs Myrie will not understand from the order alone why we have come to the conclusion that we have come to in her absence; therefore it is necessary to extend the time so that she can see and either consider and understand for herself or take advice upon what we have said in this judgement. She may well not want to take the matter any further. It seems to us that what we have concluded as to this part of the appeal must inevitably follow from the success of Mr Magba-Kamara at the second Tribunal hearing; but it would be right, in our view, to give Mrs Myrie an opportunity to take the point further if she wishes to, the point being one which was not there for her to see on the papers before the Employment Appeal Tribunal or in the Notice of Appeal at the time when she was debarred. Other Claims[35]Now we turn to the first point in Mr Ollennu's appeal which is that the Tribunal should not have proceeded as they did in Paragraph 1 of their decision to treat Mr Ollennu as a Respondent to either claim, that there never was a properly appointed representative Respondent of the Council and that for the Tribunal to declare that he was the correct Respondent and, in effect, to change the title of the proceedings from Miss Wiafe and Mrs Myrie against the Council to Miss Wiafe and Mrs Myrie against Mr Ollennu, Chairman of the Management Committee of the Council was wrong in law.[36]Mr Ollennu has taken us through the history which we have set out. He submits that he was never nominated or appointed as a representative Respondent on behalf of the Council. The IT1 in Miss Wiafe's case was initially targeted at him personally with his name and his address as those of the employer, albeit put as Chairman of the Council. He was said to be the employer himself. However, after he had sent off his IT3 in that case, and as a result of what he there said, any reference in the proceedings to him was deleted by amendment; Miss Wiafe's case proceeded against the Council without any representative Respondent; and Mr Ollennu was entitled to see himself as no longer a party or exposed to any personal liability. Neither he nor anyone on behalf of the Council attended the hearing; and as far as he was concerned he first knew that he had apparently been treated as a representative Respondent by the Tribunal when he saw the decision, without any notice to him in advance or opportunity for him to argue against any proposal that he should be made a representative Respondent.[37]Mr Ollennu has drawn our attention to the decision of the Employment Appeal Tribunal in Affleck v Newcastle Mind [1999] IRLR 405 in which the then President, Morrison J, gave important guidance as to how the Tribunal should proceed in cases in which claims are made against unincorporated associations, which, of course, have no separate legal personality. It seemed that two employment tribunals had decided in such cases that all the members of the relevant unincorporated associations, not just the governing bodies but the members of the associations themselves were the employers and therefore all were potentially liable in such claims. The Employment Appeal Tribunal held that that approach was wrong and that, in the case of an unincorporated charitable association, as the Council with which we are dealing was, the employee's contract of employment is made with the Management Committee and its members for the time being; see Paragraph 7 of the judgement.[38]The judgment continues, at Paragraphs 13 and 14:13. "In those circumstances, the Appeal against those two decisions must be allowed and the matter must now go back to the Industrial Tribunal to decide what it should do. The first thing to draw attention to is that, having identified the Committee members being the people who are the employers throughout the course of the employment, the target is well identified for the purposes of who should be sued. Under the Tribunal Rules of Procedure Paragraph 17(3) it is quite possible for there to be a representative respondent, and in such a case as this it would be desirable if it was possible for that to be done; namely one person would be named as the Respondent sued on his own behalf and on behalf of all other members of the Executive Committee at the relevant time.14. Where there is a faction or a factional dispute between the members of the Committee it may not be possible to provide for a representative respondent because it may be that the other members of the Committee would not be content for their affairs to be handled by the named individual. Whether that is the position in this case remains to be seen. Of course it is possible for any of the members of the Executive Committee to apply to be joined as a Respondent as they plainly have an interest in these proceedings.[39]In the light of those passages, Mr Ollennu submits that, while on the face of it, it would have been desirable to have had a representative Respondent in these claims a) he was never named as a Respondent on his own behalf and on behalf of all other members of the Management Committee of the Council at the relevant time, b) there never was an appointment of a representative Respondent at all, at least until the hearing in November 2002 when he was not there and neither he nor any other member of the Management Committee of the Council had any notice that the question of appointing a representative Respondent was going to arise, c) it was not possible for the Tribunal to nominate a representative Respondent, at least without some kind of a hearing, because there were factional disputes between the members of the Management Committee who have since shown their disinterest or unwillingness to regard themselves as under any obligation to share Mr Ollennu's liability and to contribute to the payments which he had been ordered to make. In any event, Mr Ollennu submits if he ever was named (only in Miss Wiafe's case) as a representative Respondent, he was removed from that capacity by the amendment which had clearly been made. 40. Mr Reed on behalf of Miss Wiafe submits, correctly, that the relationship between the members of the Committee after a decision is made is irrelevant to the Tribunal, at least in so far as an award of compensation is concerned.[41]In Paragraph 16 of its judgement in Affleck the Employment Appeal Tribunal said:
"Compensation will no doubt be awarded if that eventuality arises and it will be awarded against the members of the Executive Committee who are on the Committee at the relevant time. What is the relationship between the members of the Committee, one to another? That is not a question with which the Industrial Tribunal will be concerned but it might well become necessary for the members of the Executive Committee to speak between themselves as to who their responsibility for the consequences of any unlawful action which occurred."
[42]There the Employment Appeal Tribunal was referring to the compensation stage, once there was a representative Respondent or after an order had been made against all members of the relevant Committee without such representative Respondent. Here the orders appear to have been made against Mr Ollennu alone; we have already set out the terms of Paragraph 3 of the Tribunal's decision. Mr Reed points to Rule 19(3) of the Employment Tribunal Rules 2001 which applied at the time of the hearing in this case and is in the same terms as Rule 17(3) of the 1993 rules to which the Employment Appeal Tribunal referred in Paragraph 13 of their judgement in Affleck v Newcastle Mind [1999] IRLR 405 . That Rule provides as follows: "Where there are a number of persons handling the same interest in an originating application, one or more of them may be cited as the person or persons against whom relief is sought or may by authorised by the Tribunal, before or at the hearing, to defend on behalf of all the persons so interested.[43]Mr Reed submits that, in this case, Miss Wiafe did cite Mr Ollennu in her originating application pursuant to Rule 17(3) as the person against whom relief was sought and that thereafter Mr Ollennu knew all about what was happening, knew that he was in effect a or the target, whether the name of the Respondent was formally changed to that of the Council or not, and that therefore nothing untoward has occurred. Mr Ollennu, he submits, could have protested the position; and any other members of the Management Committee could have protested the position. The difficulties with that submission are, firstly, that Mr Ollennu did protest that position in his IT3 in Miss Wiafe's case; secondly, no other members did; and indeed so far as we know no papers were ever served on them by the Tribunal; and thirdly, the change of name, as we see it, removed any such citation of Mr Ollennu and left the Council without any named or representative Respondent, as the only Respondent.[44]Our conclusion is that matters went fundamentally wrong at the hearing now appealed against. Mr Ollennu was, without any warning or notice, made a representative Respondent when he previously was not and without any notice to him that any such thing might happen. Unfortunately no advocate appeared before the Tribunal for any party; and neither Mr Ollennu nor Mr Magba-Kamara was present. The Tribunal did not in the circumstances appreciate the importance of the appointment of a representative Respondent who would be a representative on behalf of all of the members of the Management Committee and the difficulties that might exist in appointing such a Respondent if there were differences between the members as to who should or could properly represent them.[45]In the event what the Tribunal did was, without any warning or notice taken, and when he had ceased to be a named Respondent in Mr Wiafe's case, to name Mr Ollennu as Respondent as Chairman of the Management Committee of the Council but not on his own behalf and on behalf of all the members of the Management Committee who were on the committee at the relevant time. In their actual decision they did not, as they should have done pursuant to Paragraph 16 of Affleck , make the orders either against Mr Ollennu and the other members of the Executive Committee who were on the committee at the relevant time or simply against the members of the Executive Committee who were on the committee at the relevant time. Because they did not do that, on the face of it the decision is one which appears to attach to Mr Ollennu a personal liability which will or may put him in difficulties if and when he wishes to seek contribution from any of the other members in persuading them that he is entitled to any such contribution.[46]The Tribunal's course appears to us to constitute a fundamental injustice and to have been wrong in law. While it is unfortunate that matters have occurred as they have, particularly in relation to the contractual claims to which there appears to be no real answer on the merits, we take the view that we have no alternative but to set aside the various parts of the decision of the Tribunal which remain after that which we have already dealt with i.e. that part of the Tribunal decision which orders Mr Ollennu to pay to Mrs Myrie compensation for racial discrimination. Conclusions[47]For these reasons this appeal is allowed in that, so far as the order made in Paragraph 3(1) of the Tribunal's decision is concerned, we set that aside, so far as the order in Paragraph 3(2) is concerned we set that aside; and in each case we direct that Miss Wiafe and Mrs Myrie's contractual claims and Miss Wiafe's discrimination claim should be reheard before a differently constituted tribunal.[48]So far as Paragraph 3(3) of the Tribunal's decision is concerned, i.e. compensation to Mrs Myrie in respect of racial discrimination against her, we allow Mr Ollennu's appeal and simply set that order aside. There is of course no question of any remission to any further Tribunal so far as that order is concerned; but our order as to this part of the appeal is subject to what we have earlier said about Mrs Myrie having the right to apply for a review or to set this part of our decision aside if she so wishes, within the time limit that we have laid down.[49]We would like to say one more thing. If the claims which we have remitted to be reheard are indeed reheard it is important that the Tribunal makes sure that the difficult question of who should be the appropriate Respondent or Respondents is dealt with appropriately. They may well wish to have some kind of hearing for directions at which that question can be appropriately and finally decided.[50]We were asked on behalf of Mr Wiafe, if we concluded that a remission to the Tribunal was required, to do so only so as to enable the Tribunal properly to appoint a representative Respondent, without any rehearing of the merits; but we do not believe that we can, in justice, take that course. It is not yet known whether there will be a representative Respondent; it may not be Mr Ollennu. If there is one, the debarring order against a body which has no legal personality should not prevent any representative Respondent from seeking to resist Ms Wiafe's claims on the merits.[51]In the light of the above conclusions, there is as has been common ground before us – no point in our addressing Mr Ollennu's other grounds of appeal all of which go to the substance or merits of decisions of the Tribunal which we have set aside; and we have heard no argument upon them.