Finlay v Cyron & Others

Rule 61(4)(h) of the Employment Tribunal Rules of Procedure concerns service on an existing party. It does not govern the initiation of proceedings against a person whom an application seeks to join as a respondent. In such a case, service should operate in the same practical manner as service of an originating claim.

A claim should not be struck out for improper purpose where that allegation depends on an unsafe inference from correspondence and there is no tested evidence. Nor should a fact-sensitive allegation of knowing assistance be struck out where it is arguable and not hopeless. Refusing to strike out does not determine that the claim is well founded.

The Claimant brought discrimination proceedings against companies and individuals in the Beam group. The Respondents applied to join Mr Finlay, an ex-employee based in the United States, alleging that he had knowingly aided the discrimination by communicating information about the Claimant’s willingness to relocate.

Mr Finlay applied to strike out the claim on grounds including defective service, improper purpose and lack of reasonable prospects of success. Employment Judge Pettigrew refused the application. By the time of the appeal, the underlying proceedings had settled, but Mr Finlay pursued the appeal insofar as success might support a costs application. The central issues were whether service was valid and whether the joinder application or the claim was sufficiently hopeless to justify strike-out.

1. Appeal dismissed. The appeal was entertained only on issues potentially relevant to costs. The question whether an employment tribunal had jurisdiction to entertain contribution proceedings between respondents was not decided, because a mistaken belief about that jurisdiction could not arguably justify costs liability.

2. Rule 61(4)(h) of the Employment Tribunal Rules of Procedure applies to service of notices on a person who is already a party and who has failed to provide an effective address for service. It does not apply when proceedings are first initiated against a person who is not yet a party, including an application for joinder under rule 10(2)(k) or rule 10(2)(r). The sensible regime is analogous to service of a claim form: the applicant identifies an address, including an address outside the jurisdiction, and a person who did not receive notice may later seek to set proceedings aside. The Appellant had in fact received the notice and had resisted joinder.

3. The allegation that joinder was sought for an improper purpose was serious and could not safely be determined from correspondence alone. The Judge was entitled to conclude that the necessary inference could not be drawn at the interlocutory stage, particularly where witness statements had been filed but no witness was sought to be cross-examined.

4. The alleged knowing assistance depended on the facts, including what information the Appellant communicated and how the Beam Respondents used it. Although the case was debatable, it was not clear beyond argument that the conduct could not constitute knowing aid to an allegedly discriminatory act. In marginal cases of this kind, strike-out should generally await determination of the full facts, consistently with Hallam v Avery [2001] ICR 408.

5. Refusal to strike out meant only that the claim was not hopeless. It did not amount to a finding that the contribution claim was well founded, or that the allegation of improper purpose was false.

• Employment Tribunal, Watford: Employment Judge Pettigrew refused to strike out the claim against the Ninth Respondent following a pre-hearing review on 29 November 2010; the decision was sent to the parties on 30 December 2010.
• Employment Appeal Tribunal: The appeal was allowed to proceed only on service and rule 18(7) issues potentially relevant to costs. The appeal was dismissed.