Nazir v Asim

An employee of an unincorporated association may bring Employment Tribunal proceedings in the association’s name. It is not necessary in every case to join all management committee members, although naming a representative committee member remains good practice. Committee members who employ the claimant are liable as employers, not merely vicariously or secondarily liable.

In discrimination and harassment claims, the context of the alleged conduct is relevant at the first stage of the burden-of-proof exercise. A Tribunal must consider whether the facts could support an inference that the conduct was related to the protected characteristic before requiring an explanation. Mere unreasonable treatment is insufficient.

Mrs Asim brought claims of sex and race discrimination and harassment arising from her employment by the Nottinghamshire Black Partnership, an unincorporated association. The Employment Tribunal upheld four of thirteen complaints against Mr Nazir, Mr Aslam and the association.

The appeal challenged the status of the individual respondents, the use of the association’s name, the need to join all committee members, the application of the statutory burden of proof, several harassment findings, and a finding based on the Board’s failure to address grievances.

1. Appeal allowed. The findings of sexual and racial harassment and discrimination were set aside. The remaining allegations were remitted to a freshly constituted Employment Tribunal.

2. An unincorporated association has no separate legal identity and is a group of individuals linked by contract. Following Affleck and others v Newcastle Mind and others (1999) IRLR 405, the management committee was the employer. Its members’ liability was direct liability as employers, rather than vicarious or secondary liability under sections 41, 42, 32 or 33 of the relevant Acts.

3. It was permissible to name the association as respondent in Employment Tribunal proceedings. Such a claim was not irregular and should not be struck out merely because the association was unincorporated. It was unnecessary as a universal rule to join every committee member. The practice in Affleck of naming a representative respondent remained good practice, but case management should consider members’ knowledge, objections, conflicts, enforcement issues and any specific allegations against individual members.

4. The Tribunal had misapplied the burden-of-proof provisions. At the first stage it had to consider all relevant evidence, including the context in which the conduct occurred. A non-discriminatory workplace dispute may be relevant both to whether a prima facie inference arises and to the explanation at the second stage. This applied equally to harassment. The approach in Laing v Manchester City Council [2006] IRLR 748, approved and applied in Madarassy v Nomura International plc [2007] ICR 867, was applicable.

5. The findings concerning the conversations of 23 and 28 November were inadequately reasoned. The finding concerning the use of “she” and “her” depended on the Tribunal’s perception of a recording, although the matter had not been put to Mr Aslam. Fairness required an opportunity to address the possible finding, applying Judge v Crown Leisure Ltd [2005] IRLR 823. The grievance finding also required consideration of whether Mr Nazir and Mr Aslam were implicated in the failure to deal with the grievances and acted on discriminatory grounds.

• Employment Appeal Tribunal: allowed the appeal, set aside the Tribunal’s findings, and remitted the remaining allegations to a freshly constituted Employment Tribunal.
• Employment Tribunal: upheld four of thirteen complaints in its judgment dated 6 May 2009.