This week we are looking at the scintillating topic of tribunal procedure, specifically name of correct Respondent.

It is quite common for many employees to misidentify their employer when bringing a claim. This can be for several reasons, including:

  1. The name of their employer changes over time.
  2. Documents such as payslips, contracts and company letterhead give different names.
  3. The employer is part of a larger group that uses names interchangeably.

The identity of the employer is not clear such as whether someone is a sole trader or in a partnership.

In the event a Claimant does put down the incorrect name of the Employer the Tribunal is able to accept the claim under Rule 12(2A) which allows a claim to be accepted even if there is an error, such as with the name of the employer. Under rule 29 it also has authority to amend the name of the Respondent under its own initiative.

Ms Pletini, the Claimant, worked as a waitress at the Wellington Club for one month in 2019. After leaving employment she presented Employment Tribunal claims for sex discrimination, harassment and unlawful deductions. The claims were presented against Asset Ltd, The Wellington Club, Nicola Brooks and Phil Drummond.

Ms Brooks, one of the Respondents, received the ET1 and filed an ET3 denying the claim with a substantially different version of events to the Claimant. At Preliminary Hearing the Claimant was allowed to amend the name of The Wellington Club to Jake Panayiotou trading as The Wellington Club and add a further Respondent of Nicola Brooks trading as The Wellington Club. This was because it was believed the Wellington Club was in fact a partnership between Ms Brooks and Mr Panayiotou. This was added as a fifth Respondent because the other claim was against Ms Brooks personally as a discriminator.

The Respondents did not attend the preliminary hearing. Nor did they attend the final hearing. At the final hearing the Employment Tribunal found that Ms Brooks was trading in an individual capacity and was thus the Claimant’s employer. The Tribunal awarded the Claimant over £13,000 in wages, injury to feeling and interest. When making the decision the Tribunal relied on scant contractual evidence and instead newspaper articles and assertions in each parties pleadings.

Ms Brooks appealed citing that she was unaware of being added as a fifth Respondent and that the claim had been listed for a final hearing. The tribunal ordered the parties to file a response and to provide all original evidence reviewed by the Tribunal to Ms Brooks. Neither the Claimant or any of the other Respondents filed a response to the appeal or complied with the order and were thus prevented from participating in the appeal hearing.

The Employment Appeal Tribunal was presented with documents from Ms Brooks that showed the correct employer was actually Bliss Hospitality Ltd, who were not listed as one of the Respondents. The EAT held the Tribunal was wrong to conclude Ms Brooks was the Claimant’s employer as there was little reasoning or documentary evidence to support this finding. The appeal was allowed.

Takeaway Point

This case highlights several issues:

  1. Poor record keeping nearly cost Ms Brooks dearly. Had a contract been issued identifying the correct employer she would never have faced personal liability as an employer. Some employers fall into the trap of thinking a lack of documentation will protect them but it can spectacularly backfire if the tribunal finds against them or forms a dim view about their record keeping.
  2. Both parties here were stung by not attending hearings. Had the Respondents attended the first hearing they may have prevented the award and had the Claimant engaged in the appeal she may have stopped it being overturned.

The matter appears to have started over a wages dispute worth a few hundred pounds. By not addressing this the Respondents had to incur cost to the Employment Appeal Tribunal. Sometimes constructive discussion with the employee or even a commercial settlement agreement could prevent a claim before it arises.