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A cautionary tale to employers

Background

A tribunal or employment judge has a wide discretion to add a new party or substitute a party to proceedings if it appears that:

  • there are issues between that person and any of the existing parties
  • the issue(s) falling within the jurisdiction of the tribunal; and
  • it is in the interests of justice to have the issue determined as part of the proceedings” (Regulation 34, The Employment Tribunals regulations 2013).

The tribunal may do so either on its own initiative, or following an application of a party, or a person wishing to become a party. The recent Employment Appeal Tribunal (EAT) case of Drake International Systems Ltd and Others v Blue Arrow Ltd supports the tribunal’s right to introduce new parties as a Respondent to claims in circumstances where they may not have been named as part of the mandatory early conciliation process.

The facts

The claimant sought to amend the claim to add four subsidiary companies as respondents. The EAT dismissed the appeal, stating that the Employment Tribunal (ET) had discretion to allow this under its case management powers. These powers should be exercised in accordance with longstanding principles set out in a leading case:

  • A tribunal must carry out a balancing exercise of all the relevant circumstances and exercise its discretions in a way that is consistent with the requirements of “relevance, reason, justice and fairness inherent in all judicial discretions”.
  • A tribunal must also have regard to the nature of the amendment sought, any time limits and the timing and manner of the application.

Therefore, employers should be aware that they could be added as a Respondent at a tribunal hearing, despite not being named on the Early Conciliation Certificate.

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