Orford v S Three Staffing UK Ltd (Practice and Procedure : Amendment)

Where a discrimination claimant seeks to join an end user as an alleged undisclosed principal in a triangular agency arrangement, an Employment Tribunal must determine the amendment application by asking what justice requires. It must apply the relevant amendment criteria, including the timing of disclosure of the proposed respondent. A listed hearing is a relevant factor but may carry little weight.

Sections 109 and 110 of the Equality Act 2010 provide a specific route for principal liability for an agent’s acts. The Tribunal erred by deciding the application largely from the pleadings, without properly considering the discrimination allegation, the available evidence, and the need for a substantive determination.

The claimant brought discrimination proceedings against an employment agency, S Three Staffing UK Ltd. He sought to join Sevcon Ltd, the end user of the agency services, as a second respondent. He contended that Sevcon was an undisclosed principal and could be liable for the agency’s alleged acts.

Employment Judge Garside refused joinder. The Judge relied on the imminent one-day hearing, the apparent weakness of the claim, the absence of a need to join Sevcon, and S Three’s ability to meet any award. The claimant appealed against three orders whose combined effect prevented the proposed joinder.

The central issue was whether justice required amendment to join the end user as a respondent.

1. Appeal allowed. The Employment Judge erred in refusing the claimant’s application to join Sevcon as second respondent.

2. Sections 109 and 110 of the Equality Act 2010 were directed to the potential liability of a principal for the acts of its agent. They therefore provided a specific gateway relevant to a triangular agency arrangement in which the end user was alleged to have been an undisclosed principal.

3. The Judge did not conduct the required amendment balancing exercise under Selkent and Cocking v Sandhurst. The proper question was what justice required, not merely what appeared appropriate. The Judge failed to identify the material time point arising from the late disclosure of Sevcon’s identity. The existence of a listed hearing was relevant, but was not substantial on these facts.

4. The Judge also placed undue weight on the pleadings and an assessment of the claim’s apparent strength. The discrimination allegation required consideration on evidence and substance. It should not ordinarily be disposed of through a summary procedural approach. The sufficiency of S Three’s financial resources did not answer whether Sevcon ought to be joined.

5. All the material and the amendment criteria favoured joinder. To avoid unnecessary transfer of the issue between the Employment Tribunal and the Appeal Tribunal, the EAT itself granted the unopposed application. Sevcon was joined as second respondent and the case was restored to Employment Judge Garside, or another Employment Judge, for further directions.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the refusal of joinder, joined Sevcon Ltd as second respondent, and restored the case for further directions.
• Employment Tribunal: Employment Judge Garside had refused the claimant’s application to join Sevcon Ltd as a second respondent. No citation was stated in the judgment.