Welsh v Bendel & Anor (Unfair Dismissal : no sub-topic) [2012] UKEAT 0014_12_2906

EAT
Welsh v Bendel & Anor (Unfair Dismissal : no sub-topic)
[2012] UKEAT 0014_12_2906 · 2012-06-29
[1]This is an appeal against a decision by Employment Judge Hosie at Aberdeen made on 20 December 2011 of which the parties were notified on 23 December. The circumstances[2]The circumstances were these. Mr Bendel, the First Respondent to this appeal, claimed constructive and unfair dismissal from the employment of Cape Industrial Services Limited, the Second Respondent to this appeal. He claimed that his employer had been in breach of contract and that as a disabled employee he had been discriminated against in particular in respect of harassment against him.[3]For much of that he blamed the Appellant, John Welsh. However, he did not choose to make a claim as he might have done under the Equality Act 2010 against Mr Welsh. He claimed only against Cape Industrial Services.[4]The matter as between Mr Bendel and Cape Industrial Services Limited came before the Employment Judge on 20 December for a case management discussion. The Respondent, Cape, applied for the Appellant before me, Mr Welsh, to be sisted as a further Respondent as being potentially liable for the alleged harassment. Employment Judge Hosie allowed this. Mr Welsh now appeals against that decision. His appeal, though initially resisted is not now resisted before me. Mr Hughes raised two grounds of appeal in order to score in the now open goal. His skeleton argument develops a further point - that there was no valid order in this case since there has never been a document which purports to be a court order complying with the terms of rule 10(8). This is a point of formality, not of substance. It is nonetheless, as it seems to me, a good point, though if it were not for the second point it would be capable of remedy. The second point, however, is one of substance. It is that there was no power in the Employment Judge to sist Mr Welsh a Respondent to the claim. The potential power to do so arises under rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Rules 2004 .[5]Rule 10 is drafted in wide and permissive terms. 10(1) reads:
“Subject to the following rules, the Employment Judge may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit.”
Accordingly, the powers listed in paragraph 2 are not necessarily conclusive of the full extent of the powers of the Employment Judge.[6]The sub-paragraphs provide examples of such orders. Under rule 10(2)(k) an example of an order the Judge might make is that any person who the Employment Judge considers may be liable for the remedy claimed should be made a Respondent to the proceedings.

(r) :

“That any person who the Employment Judge or Tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings.”
[7]Mr Hughes in a careful, thorough and persuasive skeleton argument draws attention to a decision of this Tribunal presided over by Underhill J as President in the case of Beresford v Sovereign House Estates Limited UKEAT/0405/11, a decision of 29 November 2011. That was a fully argued appeal as this has not been. The appellant there argued that there should be no joinder of Mr Beresford as a respondent to a claim alleging, amongst other things, harassment by him. By virtue of the provisions (now of sections 109 and 110 of the Equality Act 2010 ) both an employer, unless he makes out the statutory defence, and the employee concerned may be liable for acts constituting discrimination in one of the prescribed respects. However, in that case Underhill J considered that rule 10(2)(k) did not give power to join Mr Beresford as an additional respondent. That was because the classic instance of such a case was where a claimant ( not a respondent) sought such joinder. The person joined would not be liable for the remedy claimed if the claimant in the proceedings made no claim against him or her: that essentially is because the remedy claimed must be read as a reference to the remedy claimed before the Employment Tribunal. Unless a claim is made there can be no remedy given against an individual who is not a party to the proceedings. None was sought in that case by the claimant against Beresford.[8]That short summary does not do justice to the careful and compelling consideration which Underhill J gives to rule 10(2)(k) which having considered I am entirely content to adopt as the law. He also considered rule 10(2)(r); he noted that no authority as to its effect had been cited to him. He concluded that the power was not available under 10(2)(r) either. That was because, as it seemed to him, it was hard to see how it could be appropriate for either the Claimant or the Respondent to the original claim to seek to join a litigant to the proceedings against his wishes. The purpose of a respondent doing so might be thought to be to pursue a claim for contribution against the party sisted. However, the law has become clear (see in particular Sivanandan v London Borough Hackney [2011] IRLR 740 EAT) that an Employment Tribunal has no power to order contribution between joint tortfeasors. Each of the two joint tortfeasors is liable separately for the full extent of the damages owed to the claimant. Thus for a respondent to join another party as respondent affords him no advantage, where the claimant has no interest in pursuing that other party for his damages.[9]In these current proceedings Mr Hughes observes, and rightly so, that there is no power in the Employment Tribunal to make any order under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 section 3 just as there would be no jurisdiction for a Tribunal in England to determine a claim for contribution under the Civil Liability Contribution Act 1978 . Thus far, I entirely agree with the reasoning of Underhill J and with the submissions of Mr Hughes. On an application of Beresford (which unless I am persuaded it is wrong I should follow) this appeal must be allowed.[10]I should, however, voice one concern about the reasoning in respect of 10(2)(r). It may be that on further consideration a different view could be taken.[11]The rule is very general even within the paragraph which constitutes 10(2)(r), and as I have pointed out is introduced by very general and broad words at rule 10(1). The specific wording of 10(2)(r) leaves it to the Tribunal to consider whether a person “has an interest in the outcome of the proceedings” That is not the same as, and is plainly deliberately broader than, being made liable in those proceedings. It is apt, as Underhill J observed, to cover the situation of parties who may wish to intervene but it must also, and in a very real sense, be available to those whose personal and pecuniary interests are potentially affected by a decision of the Tribunal. In a case in which the claimant has sued an employer for wrong-doing against her or him by a fellow employee, then if the claim should be successful the employer may have a right of recourse against that fellow employee in the civil courts which goes beyond the right under statute to claim contribution in proceedings which are already on foot. There is powerful authority for that, in Lister v Romford Ice & Cold Storage [1957] AC 555 . That case was not cited to Underhill J. It is to the effect that in some circumstances (the case itself concerned a road traffic incident) an employee may be liable under his contract of employment or in tort to his employer for having done wrong to someone who had a right of recourse against the employer - in that case under the doctrine of vicarious liability. It may be that the application of principles so authoritatively determined could be considered to give the employee accused of wrong doing an interest in the outcome of proceedings: for instance in the Lister case itself the damage for which the employee could be sued was held to be established by the certificate of the court recording the outcome of the proceedings between the injured party and the employer. Thus a finding against an employer on the basis that an employee of his had committed a tort might expose that employee to liability, and in that way give him an interest in the outcome of the proceedings.[12]Thus it might be thought in a case such as this that Mr Welsh might have had an interest in the outcome of proceedings. True, he might be called as a witness if either party required it but a witness does not have the right to address the Tribunal and to make submissions which are protective of his interests. It may be that which, amongst other matters, the rule is designed to secure. As I have indicated, these remarks are obiter because I am content to be bound by the decision of Underhill J in Beresford . My comments are by way of reservation and not to the effect that I am persuaded his decision is wrong in this respect. However, I should add that in this particular case no such an issue is likely to arise because I have been told by Mr Hughes that there has been litigation between Cape and the Appellant elsewhere in matters connected to his employment and relevant to the claim which have been compromised. It is not proper to say more about the terms of the compromise in present circumstances.[13]Told that, I can well understand how it might be said that Mr Welsh has no real interest in the outcome of the present proceedings between Bendel and Cape. I can understand too why it is that Cape does not appear to oppose this appeal.[14]I should add that if I had been persuaded that Beresford was on this point wrongly decided, reference not having been made to Lister v Romford Ice and similar principles in argument, I would have nonetheless have concluded that the appeal should have been allowed but on a slightly different basis. Where a Judge is exercising a power of his own initiative, he must do with regard to reason, relevance and justice. Where the proposal is to join a party, then it seems to me axiomatic that that party should at least be informed that that matter is under consideration so that he has an opportunity to make representations about it; otherwise he may be put to expense, time and trouble.[15]This is particularly so in the case of rule 10(2)(r). The rule is no doubt intended to protect the interest of the party who might be joined. Such a party is joined not upon the basis that the party seeking the joinder has an interest in them being joined. That is not what the rule says: rather it is that the party to be joined has him or herself to have an interest in the outcome. If that party says that he does not wish to be joined then the exercise of the power to require him to become a party would not only be paternalistic, but it would be contrary to his own interests as to which he must be the best judge.[16]In short the power should not have been exercised in my view without first ascertaining the views of Mr Welsh. It might have been assumed that he would welcome the opportunity of being made a party and having, as I say, the right to make submissions to the Tribunal and to persuade it to his point of view. But such a matter should not rest upon assumption alone; it should be determined by appropriate means.[17]Accordingly, if I had been persuaded that Beresford was wrong, I would have held nonetheless that in this case the power to sist the Appellant, which on this view of the law would have existed, should not have been exercised without first hearing from him, and therefore that the discretion was wrongly exercised. That being so, in exercise of this Tribunal’s powers on appeal, I would have allowed the appeal and exercised the powers of the Employment Tribunal. In the light of the submissions made to me, that would lead to one conclusion only which would be that Mr Welsh would not have been sisted as an additional party. Conclusion[18]It follows that on the ground advanced I hold that this appeal must be allowed. The effect will be that Mr Welsh is dismissed from the litigation which must proceed as between Bendel and Cape as it did before the order made by Employment Judge Hosie on 20 December 2011, or at least before he indicated what order he would have been minded to make, if an order had eventually been drawn up.