Employer Could Not Join Former Employee as Respondent to a Discrimination Claim

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Posted on 05 Jan 2012

An employment tribunal could not use its case management powers to allow a respondent employer in a sex discrimination claim to add a former employee as a second respondent. 

Employees who bring discrimination claims will sometimes bring the claim against both the employer and the particular employee who committed the act of discrimination. An employment tribunal can order that they are jointly and severally liable for compensation awarded. In Beresford v Sovereign House Estates the EAT had to consider whether an employer could join its former employee, who had committed the acts of discrimination, as a party to the claim in circumstances where the claimant had chosen to bring her claim solely against the employer and remained adamant that she did not wish to claim against the employee. 

The employer argued that the tribunal had the power to add the employee on the basis that the employee may be liable for the remedy claimed, or alternatively on the basis that the employee had an interest in the outcome of the proceedings. Both of these circumstances are provided for in the employment tribunal rules of procedure. 

The EAT held that the employment tribunal did not have power to join the employee. A person can only be liable for a remedy if that remedy is sought against them and since the claimant had chosen not to bring a claim against the employee, they could not be liable. Likewise, the employee did not have an interest in the outcome of the proceedings if the claimant did not pursue a claim against them. 

The EAT considered that it might be possible for an employer to join an employee as a respondent on the basis that the employer claims a contribution from the employee under the Civil Liability (Contribution) Act 1978. In such a case the employee might be said to be liable for the remedy claimed, in that it might be liable to the employer. However, it was not convinced that employment tribunals have the power to determine claims for contribution and. in any event, no such claim had been brought in this case so there were no grounds for joining on that basis. 

This case highlights a potential difficulty for employers faced with discrimination claims where the claimant does not wish to claim against the employee who has committed the act(s) of discrimination. Having the employee joined as a respondent has two advantages. First, they will give their version of events and second, they might be ordered to be jointly and severally liable for the compensation awarded. Whilst an employee who is still employed is likely to co-operate with their employer, former employees may well refuse to give evidence and in such circumstances the employer’s only option, if they are unable to add them as a respondent, is to seek a witness order. However, there are dangers inherent in doing so because the employer would not be able to cross-examine the witness if it disagrees with what they say. In addition, obtaining a witness order does nothing to assist the employer in terms of obtaining an order that the employee be jointly and severally liable for the compensation awarded - which was one of the employer’s objectives in this case.

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