Parveen v International Dance Shoes Ltd & Anor

An application to join an additional respondent after the limitation period has expired is not automatically barred. The expiry of time is a factor in the exercise of the tribunal’s discretion. The tribunal must consider the circumstances of the delay, including whether the claimant acted promptly once the necessary information became available, and any prejudice or practical difficulty caused by joinder.

In a discrimination claim, joining the individual alleged to have committed the act is not automatically appropriate. The tribunal should decide the application on its circumstances, including the likely procedural consequences and the interests of justice.

The claimant brought Employment Tribunal proceedings against her former employer, alleging constructive unfair dismissal and sex or pregnancy discrimination. Her ET1 stated that she wished to join her manager, identified only as Harry, once his full name was disclosed.

After the manager’s surname was given in the ET3, she promptly applied to join him. The Employment Judge refused the application on the basis that any claim against him was out of time and later refused a review. The central issue on appeal was whether expiry of time was an absolute bar to joinder and, if not, whether joinder should be ordered on the particular facts.

1. Appeal allowed. The Employment Judge was wrong in law to refuse the application solely because the claim against the additional respondent was out of time.
2. Following Drinkwater Sabey Limited v Burnett [1995] IRLR 238, expiry of the limitation period is not an absolute bar to adding a further party. It is a matter to be taken into account in the tribunal’s discretion. This approach was consistent with more recent authority, including Transport and General Workers Union v Safeways Stores Limited UKEAT/0092/07.
3. The application should be allowed on the facts. The claimant had made her intention to join the manager clear in the ET1, lacked his surname, and acted promptly when it was disclosed. There was no apparent prejudice from the delay. The manager would in any event be a witness, and the claim against the employer would proceed.
4. The fact that individual respondents are commonly joined in discrimination claims does not create a universal practice or an automatic entitlement to joinder. Joinder may create additional complication and stress, so the tribunal must assess the particular circumstances.
5. The appeal was determined by the EAT itself with the parties’ consent. Mr Harry Aulakh was ordered to be joined as Second Respondent on the basis of the allegations already pleaded in the ET1.

• Employment Tribunal: refused the application to join Mr Aulakh on the ground that any claim against him was out of time, and refused a subsequent application for review.
• Employment Appeal Tribunal: allowed the appeal and ordered that Mr Aulakh be joined as Second Respondent.