Greenwood v Cornwall Council & Anor

Where a respondent is added to employment proceedings after the ordinary limitation period, the tribunal must decide joinder as an exercise of discretion. The expiry of a limitation period for fresh proceedings is a relevant factor, but it is not a jurisdictional bar and is not decisive.

Where responsibility for employment claims under the Education (Modifications of Enactments Relating to Employment Tribunal)(England) Order 2003 depends on unresolved facts and potentially changing school governance arrangements, a local authority should not be struck out prematurely. It should remain a party until a full hearing determines whether, and to what extent, it is liable.

The claimant, a primary-school teacher employed under a contract with Cornwall Council, resigned and brought claims for constructive unfair dismissal, notice pay and sex discrimination. Following an objection that the school’s Interim Executive Board was the proper respondent, an Employment Judge added that Board without hearing submissions from either respondent.

At a subsequent pre-hearing review, the Employment Judge dismissed the claims against the Board as out of time and dismissed Cornwall Council on the basis that the 2003 Order required the claim to be made solely against the governing body. The claimant appealed. The central issues were whether late joinder of the Board was barred by limitation and whether the Council could properly be removed before the relevant facts and legal responsibility had been determined.

1. Appeal allowed. The dismissal of the Interim Executive Board was erroneous. The proceedings had been commenced in time, at least in respect of unfair dismissal. Whether the Board should be added was therefore a matter for the tribunal’s overall discretion, rather than a question conclusively determined by the time limits applicable to a new claim.

   The fact that a fresh claim against the Board would be out of time was a relevant discretionary consideration. It was not determinative. The joinder issue was remitted for a discretionary decision, to be dealt with by Employment Judge Roper or another judge, but not Employment Judge Parker.

2. The dismissal of Cornwall Council was also erroneous. The Employment Judge had treated Green v Governing Body of Victoria Road Primary School and another [2004] LGR 336 as imposing an absolute rule that a local education authority could not remain a party to a teacher’s unfair-dismissal claim against its will. That was not the effect of the authority. Jones v Neath Port Talbot County Borough Council [2011] ICR 1415 showed that a claim may in appropriate circumstances be maintained against both the authority and the governing body.

3. The position under the Education (Modifications of Enactments Relating to Employment Tribunal)(England) Order 2003 was factually and legally unresolved. The alleged acts straddled the periods of different governing arrangements, and the Employment Judge had not identified which governing body was relevant or addressed the sex-discrimination claim. A full hearing was required to establish the facts and determine whether the Council was liable to any extent. Cornwall Council was accordingly to remain a party so that it could participate in that hearing.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the pre-hearing review decision of Employment Judge Parker. The joinder issue concerning the Interim Executive Board was remitted, and Cornwall Council was retained as a respondent pending a full hearing.
• Employment Tribunal: At a pre-hearing review on 19 June 2013, dismissed the claims against the Interim Executive Board as out of time and dismissed Cornwall Council on jurisdictional grounds.