Beresford v Sovereign House Estates

A respondent cannot secure the joinder of a person merely because that person may also be liable for the claimant’s alleged acts. Where the claimant advances no claim against that person, joinder requires an identifiable claim by the existing respondent, ordinarily a contribution claim under the Civil Liability (Contribution) Act 1978. The tribunal’s general case-management powers cannot be used to grant relief outside its jurisdiction. A late attempt to introduce an unresolved contribution claim may also be refused where the point was not argued below and procedural fairness requires finality.

The claimant brought sex discrimination proceedings against her former employer, alleging harassment by the appellant, a former colleague, and subsequent victimisation and constructive dismissal. She expressly stated that she sought no remedy against the appellant.

The employer nevertheless applied, some nine months into the proceedings, for the appellant to be joined as a respondent. The Employment Judge allowed the application under rules 10(2)(k) and 10(2)(r) of the Employment Tribunal Rules of Procedure 2004. The appellant appealed, contending that no proper basis for joinder existed.

1. Appeal allowed. The order joining the appellant was discharged.
2. Rule 10(2)(k) requires the tribunal to consider that the proposed party may be liable for the remedy claimed. Its classic application is where the claimant seeks to add or substitute a respondent. It did not justify joining a person whom the claimant expressly did not intend to sue merely because he might have committed the alleged acts.
3. A tribunal could not properly issue judgment declaring the appellant liable to the claimant when the claimant had advanced no claim against him. The existing claim form could not simply be treated as a claim against him without confronting what relief was actually sought.
4. The only potential basis identified for the employer’s application was a contribution claim against the appellant under the Civil Liability (Contribution) Act 1978. The judgment noted substantial uncertainty whether such a claim arose between joint discriminators and whether an employment tribunal had jurisdiction to determine it. No such claim had been advanced before the Employment Judge or on the appeal.
5. Rule 10(2)(r) may extend to a person whose legal interests are directly affected, or who may be liable to indemnify an existing party. However, where the proposed party does not seek joinder and neither existing party pursues a legally recognisable claim against him, the same contribution issue arises.
6. It would be unfair to permit the employer to raise the new and difficult contribution point for the first time on appeal, particularly where the appellant could reasonably have understood that any direct liability claim was no longer being pursued.
7. The appellant remained capable of being compelled to give evidence by witness order.

• Employment Tribunal: Employment Judge Goldman ordered that the appellant be joined as a second respondent under rules 10(2)(k) and 10(2)(r) of the Employment Tribunal Rules of Procedure 2004.
• Employment Appeal Tribunal: appeal allowed and the joinder order discharged.