Welsh v Bendel & Anor

An Employment Judge has no power under rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Rules 2004 to join as a respondent an individual against whom the claimant has made no claim, merely because the existing respondent alleges that the individual is primarily liable for the alleged harassment.

Rule 10(2)(r) may potentially extend to a person whose personal or pecuniary interests could be affected by the outcome. However, any joinder under that provision requires consideration of the proposed party’s own interest and an opportunity for that person to make representations. The point did not alter the result, because the Tribunal followed Beresford.

The first respondent claimed constructive and unfair dismissal, breach of contract, and disability discrimination by harassment against his employer, Cape Industrial Services Ltd. He attributed much of the alleged harassment to the appellant, Mr Welsh, but did not bring a claim against him under the Equality Act 2010.

At a case-management discussion, the Employment Judge joined Mr Welsh as an additional respondent at Cape’s request. Mr Welsh appealed. The appeal was initially resisted but was unopposed before the Employment Appeal Tribunal. The central issue was whether rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Rules 2004 empowered the Employment Judge to join him.

1. Appeal allowed. The Tribunal followed Beresford v Sovereign House Estates Ltd, which had determined the relevant issue of principle at Employment Appeal Tribunal level. Rule 10(2)(k) did not permit the employer to join Mr Welsh as a respondent where the claimant had made no claim against him. A person cannot be liable for the remedy claimed before the Employment Tribunal unless a claim is made against that person.

2. The Tribunal also accepted Beresford’s conclusion that rule 10(2)(r) did not provide the required power on the facts. A respondent gains no advantage from joining an alleged joint tortfeasor merely to seek contribution, since an Employment Tribunal has no jurisdiction to order contribution between joint tortfeasors. The Tribunal had no jurisdiction under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 to make such an order.

3. The President expressed obiter reservations about the breadth of Beresford’s reasoning on rule 10(2)(r). A person may have an interest in proceedings where a finding could expose that person to a civil claim by the employer, as illustrated by Lister v Romford Ice & Cold Storage Ltd. The rule might therefore protect a proposed party’s ability to address the Tribunal and protect that interest.

4. In any event, even if rule 10(2)(r) conferred a power to join Mr Welsh, the discretion could not properly have been exercised without first notifying him and allowing him to make representations. The order joining him was set aside, and he was dismissed from the litigation. The claim was to continue between Mr Bendel and Cape.

• Employment Appeal Tribunal: Allowed Mr Welsh’s appeal and set aside the Employment Judge’s decision of 20 December 2011 joining him as an additional respondent.
• Employment Tribunal: At a case-management discussion, Employment Judge Hosie had granted Cape’s application to join Mr Welsh as a further respondent.