An issue that arises with surprising regularity is the joining of a new Respondent to Employment Tribunal proceedings.
One element of this is the joinder of a Respondent at a request of a fellow Respondent rather than the Claimant. The legal basis for such an action has in the past been considered doubtful.
This issue has now been addressed by the Employment Appeal Tribunal in Beresford v Sovereign Housing Estates Ltd & Others (2011) UKEAT/0405/11/SM.
The Claimant commenced a claim to the Employment Tribunal alleging that she had been sexually harassed by Mr Beresford whilst both were employed by Sovereign House Estates Ltd. The claim was commenced against Sovereign House Estates Ltd .
In their ET 3, Sovereign denied the allegations but also pleaded the statutory defence, namely that they had taken reasonable steps to prevent the harassment occurring. The specific nature of the statutory defence is not stated, but we may assume that it was based upon the existence of an equality and diversity policy and training for employees of such a policy.
At a CMD the Tribunal allowed an application by Sovereign sought to have Mr Beresford joined as a Respondent to the proceedings. The application was made pursuant to Rule 10(2)(k) of the 2004 Rules. The Claimant did not support the application and did not wish Mr Beresford to be joined to the proceedings.
Mr Beresford, now joined to the proceedings, appealed against that order to the Employment Appeal Tribunal.
The President of the Employment Appeal Tribunal (Underhill P) held that the Tribunal had erred and that Mr Beresford should not have been joined to the proceedings.
Underhill P noted that Rule 10(2)(k) allows joinder of a Respondent who “may be liable for the remedy claimed” As the Claimant was not seeking a remedy against the Respondent, Mr Beresford should not have been joined.
However, that was not the end of the matter. Underhill P proceeded to consider the applicability of the Civil Liability (Contribution) Act 1978 to the case. The issue being, if Soverign were found liable for the alleged discrimination, could they seek a contribution from Mr Beresford? Practitioners will note that this is a statute that is occasionally referred to in proceedings but that Tribunals are reluctant to apply.
Underhill P acknowledged that discrimination has been described as a ‘statutory tort’ and that in Ross v Ryanair [2005] 1 WLR 2447 the principle of contribution was held (without argument) to apply to the tort. The Ryanair case was a non employment case that proceeded in the civil courts rather than the Tribunal.
Nevertheless, Underhill P found distinguishing factors in the case before him which were applicable to joinder applications under Rule 10(2)(k). The first was that there was no equivalent provision in the ET Rules to Part 20 of the CPR which governs joinder in the civil courts.
The second reason was more fundamental. Underhill P described as “strongly arguable” the view that the power to award contribution arose only in relation to liabilities which the ordinary courts would have jurisdiction to consider. The civil courts to not have jurisdiction to consider discrimination claims relating to employment.
Whilst therefore not deciding the contribution point conclusively, Underhill P noted that he had reserved Judgment in Sunderland City Council v Brennan (2011) UKEAT/0286/11 and that when the Judgment is promulgated, that may go some way to addressing the point.
