Johanson (t/a Kaleidascope Child Care) v Yeo

An Employment Tribunal may join a respondent on its own initiative. However, procedural fairness requires the proposed respondent to receive notice of the joinder and an opportunity to challenge it. The proposed respondent must also have an opportunity to participate in the hearing before judgment is entered against them. It is an error of law to make a person a party for the first time at a hearing and immediately determine the claim against that person without giving them notice or an opportunity to be heard.

Mrs Yeo brought claims for unfair dismissal, unauthorised deduction from pay and unpaid holiday pay. The claim named Kaleidascope Child Care, and the response named Kaleidascope Child Care Limited. The Employment Tribunal sent the case management order and hearing notice to the company’s stated address. No one attended the hearing.

The Tribunal nevertheless entered judgment against Miss Cathy Johanson, trading as Kaleidascope Child Care. She appealed, arguing that she had not been named as a party and had no opportunity to address either joinder or the merits. The central issue was whether the Tribunal could enter judgment against her in those circumstances.

1. Appeal allowed. The Employment Tribunal erred in law by entering judgment against Miss Johanson when she had not previously been named as a party and had not been notified of the hearing.
2. The Tribunal had power under rule 10(2)(k) of the Employment Tribunal Rules to add a respondent on its own initiative. However, fairness required a person affected by such an order to receive notice and an opportunity to challenge the joinder. That followed by analogy with rule 12(2), which required notice and an opportunity to set aside an order joining a party made by an Employment Judge.
3. It was also wrong in principle to give judgment against a new party at a hearing which that party had not been notified to attend. The right to a fair hearing, relied upon by the appellant under Article 6 of the European Convention on Human Rights, reinforced that conclusion.
4. The case was remitted for rehearing before a fresh Tribunal. The Tribunal ordered that both Miss Johanson and Kaleidascope Child Care Limited be joined as respondents, so that liability could be determined after both were given the opportunity to participate. An Employment Judge was directed to consider the matter on paper and give directions before listing the rehearing.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s judgment dated 19 August 2009 and remitted the case for rehearing before a fresh Tribunal.
• Employment Tribunal: Awarded Mrs Yeo compensation for unfair dismissal, unauthorised deduction from pay and unpaid holiday pay, entering judgment against Cathy Johanson trading as Kaleidascope Child Care.