Koyama v Lindley & Anor

In an employment claim, the proper respondent is the employer or a person against whom a separate statutory basis of liability is actually advanced. A director and an HR employee were not proper respondents merely because they were involved in the businesses or decisions. Where the claimant objected to substituting the corporate employers, the tribunal was entitled to refuse substitution. On a renewed application for permission to appeal, the Court of Appeal could intervene only if the Employment Appeal Tribunal had erred in law. An alternative finding about the claim’s prospects against the companies was immaterial because they were never substituted.

The applicant brought age-discrimination and unauthorised-deductions claims against a company director and an HR manager, alleging that they were his employers. The employment tribunal found that the companies, rather than the individuals, were the employers. It dismissed or struck out the claims against the named respondents and declined to substitute the companies, partly because the applicant objected.

The Employment Appeal Tribunal, exercising its Rule 3(10) procedure, held that the Notice of Appeal disclosed no reasonable grounds. Sir Henry Brooke refused permission to appeal on the papers. The Court of Appeal considered the renewed application in the applicant’s absence. The central issues were whether the individuals were proper respondents, whether the companies should have been substituted, and whether the alternative assessment of the claims’ prospects required appellate intervention.

Application refused. Lord Justice Keene proceeded in the applicant’s absence after being satisfied that he had been notified of the hearing. He agreed with Sir Henry Brooke’s written refusal of permission.

1. The evidence established that OLED Ltd, not the director, was the applicant’s employer. The HR manager was an employee of Macdonalds Ltd and was not himself the employer. The individuals were therefore not appropriate respondents to claims framed on the basis of employer discrimination and unauthorised wage deductions.
2. The employment tribunal had considered whether to substitute OLED Ltd and Macdonalds Ltd under Rule 10(2)(k) of the Employment Tribunal Rules of Procedure 2004. The applicant expressly objected, having stated that OLED Ltd was in liquidation and unable to meet any liability. In those circumstances, the tribunal’s decision not to substitute the companies was not wrong in law.
3. The Court of Appeal could act only if the Employment Appeal Tribunal had erred in law. It could not itself substitute the companies as respondents when no error by the Employment Appeal Tribunal was shown.
4. The tribunal’s alternative conclusion that the claims would have had no reasonable prospect of success against the companies was subsidiary. Since the companies were not substituted, nothing turned on that issue and it did not require determination on the renewed application.

The tribunal had noted the possible route under regulation 26 of the Employment Equality (Age) Regulations 2006 for a claim against a knowing aider, but found that no claim had been brought on that basis. The renewed application was accordingly refused.

1. Court of Appeal (Civil Division): On 18 December 2007, the renewed application for permission to appeal was refused: [2007] EWCA Civ 1459.
2. Employment Appeal Tribunal: Silber J, under Rule 3(10) of the EAT Rules 1993, held that the Notice of Appeal disclosed no reasonable grounds. Permission was refused on the papers by Sir Henry Brooke.
3. Employment Tribunal: The tribunal dismissed or struck out the claims against the named respondents under the Employment Tribunal Rules of Procedure 2004, finding that they were not the applicant’s employers and declining to substitute the companies.