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Chambers & Partners
28/06/2010

(1) N Nazir (2) M Aslam v. (1) A Asim (2) Nottinghamshire Black Partnership (debarred)

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Employment Appeal Tribunal

While in ordinary civil proceedings an unincorporated association could neither sue nor be sued in its own name, it was permissible for an employee to bring a claim in an employment tribunal against an employer who was the management committee of an unincorporated association by using the name of the association.
 
The appellants (N and M) appealed against a decision of an employment tribunal upholding in part complaints of sexual harassment and race discrimination brought against them by the respondent (X). X had been employed as the chief executive officer of an unincorporated association. N and M were members of the association's governing board. X alleged that she had been racially discriminated against and sexually harassed by N and M. On her ET1 claim form she gave the name and details of both the association and of N and M, and she set out the ways in which she claimed she had been subjected to harassment and discrimination. The issues were whether (i) N and M had been sued in a personal capacity or in their capacity as members of the board; (ii) it was permissible for an unincorporated association to be named as a party, and whether all the board members had to be joined in order for the proceedings to be properly constituted; (iii) the tribunal had misapplied the burden of proof provisions in the Sex Discrimination Act 1975 s.63A(2) and the Race Relations Act 1976 s.54A(2).
 
HELD: (1) In the light of Affleck v Newcastle Mind (1999) ICR 852 EAT it was common ground that X was employed by the members of the board, Affleck followed. All the board members were bound by contract to X and together they constituted her employer for the purposes of the 1975 and 1976 Acts. X's claim had been brought against both the association and against N and M. The claim form set out specific criticisms of N and M and sufficiently put them on notice of the case they had to meet. They had been joined as board members and were not being sued only as "perpetrators". Indeed, there was no separate secondary status of "perpetrator" applicable to a member of the management committee of an unincorporated association sued by an employee. (2) In ordinary civil proceedings an unincorporated association could neither sue nor be sued in its own name. Unless representative proceedings were brought a claimant had to make all the members of the management committee parties. However, for the following reasons it was permissible for an employee to bring a claim in an employment tribunal against an employer who was the management committee of an unincorporated association by using the name of the association. Firstly, employment tribunals were to a large extent concerned with claims by employees against their employers, and management committees of an unincorporated association often engaged employees in the name of the association. Whether or not that had happened in any particular case, a management committee could not have any cause for complaint if an employee brought proceedings in the name of the association. Secondly, in tribunal proceedings the time limits for commencement of proceedings were generally strict, and if proceedings started in the name of an unincorporated association were liable to be dismissed, there was potential for procedural delay, if not injustice. Thirdly, undue formality was to be avoided in tribunal proceedings. Finally, employees generally could not be expected to know about the special legal position of unincorporated associations. Those matters were all relevant to the overriding objective of dealing with cases justly. It remained good practice for a claimant employee to name a representative respondent who was a member of the management committee at the relevant time, and to state that he was sued on his own behalf and on behalf of all other members of the committee at the relevant time. However, a claim brought only in the name of an unincorporated association was not irregular and was not liable to be struck out. A number of questions would, nevertheless, need attention at the case management stage: whether the members of the management committee actually knew of the proceedings; whether there was any objection to the proceedings continuing as they had begun; whether there was any conflict of interest or disagreement between committee members that might require one or more to be added as respondents; and whether there was any likely problem of enforcement unless all or most members of the committee were made respondents. In the instant case N and M had no cause for complaint. (3) When a tribunal was considering whether facts had been proved from which it could conclude that harassment was on the grounds of sex or race, it had, at the first stage, when it was considering whether there was a prima facie case of discrimination, to take into account the context of the alleged conduct. Evidence of context tending to show that conduct, even if unreasonable, was not on the grounds of sex or race had to be weighed and considered at that stage, Laing v Manchester City Council (2006) ICR 1519 EAT and Madarassy v Nomura International Plc (2007) EWCA Civ 33, (2007) ICR 867 applied. In the instant case the tribunal had considered such contextual evidence only at the second stage, and had not taken it into account when considering whether there was in fact a prima facie case of discrimination. In those circumstances it had misapplied the burden of proof provisions and the matter would be remitted for consideration by a freshly constituted tribunal.

Appeal allowed.

[2010] EqLR 142; (2010) ICR 1225
EMPLOYMENT, BURDEN OF PROOF, CLAIMS, RACE DISCRIMINATION, RESPONDENTS, SEX DISCRIMINATION.

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