Employment Flash - 30th November 2010

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Discrimination: amending to bring in the individual: President's observation on practice...

Parveen v (1) International Dance Shoes Ltd (2) Aulakh [2010] UKEAT 0447 10 LA

P reserved the right in her ET1 to join the manager that she believed had discriminated against her once IDS had disclosed his full name. IDS did so in their ET3. P promptly sought to join A. IDS opposed the application. The EJ refused the application on paper as a claim against A was now out of time. P sought a review. The EJ refused the application but said she may renew her application at the hearing.

EAT (Underhill P), the EJ had been wrong with the original refusal:  the fact that an application to join a further party was out of time was not an absolute bar but was simply a matter to be taken into account as a matter of discretion (Drinkwater Sabey Ltd v Burnett [1995] IRLR 238; T&GWU v Safeways Stores Ltd [2007] UKEAT 0092 07). There also seems (without deciding) substantial force in the complaint relating to the review decision: P should have the matter determined in advance of the hearing. P had the legal right to bring a claim against A and she had an understandable reason for not doing so in the original ET1. The delay had not given rise to any possible prejudice.

It was right to say that claimants in discrimination cases very often join the employer and the individual responsible for the act complained of, " there is no universal practice to do so, and I would be sorry if it were treated as automatically the right thing to do. In many cases it will simply add to the complication and stress generated by the litigation."