Employment Flash - 2nd July 2010

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Bringing a claim against an unincorporated association...

(1) Nazir (2) Aslam v (1) Asim (2) Nottinghamshire Black Partnership [2010] UKEAT 0332 09 RN

Mrs Asim claimed sexual and racial discrimination and harrassment. The claim was brought against the unincorporated association whose management committee she was employed by and against two members of the management committee.

The appellants contended that NBP as an unincorporated association ("UA") was not an appropriate respondent as it was not a legal entity and that all the members of the management committee should have been made parties rather than just two members; it was a matter for the committee who should in practice represent them not a matter for the claimant. All members of the committee should be joined as otherwise some members might be unaware of their liability.

Affleck v Newcastle Mind [1999] IRLR 405 determined that an employee of a UA had a contract of employment with the management committee and its members notwithstanding changes in its composition from time to time. In civil proceedings all members must be made parties if they are to be bound by the result unless representative proceedings under the CPR are brought. It is common practice in the ET to bring a claim against a UA: employees completing their own forms are not to be expected to know of the legal status of a UA, particularly as their terms and conditions may name the UA rather than the management committee as their employer; time limits are strict and valid claims ought not to be delayed or debarred because they have been started in the name of a UA; ET's are to avoid undue formality.

The EAT approved the practice of naming a representative respondent who was a member of the management committee at the relevant time and stating he is sued on his own behalf and on behalf of all members of the management committee. If the committee is not united behind the named individual then it is always possible for any member to apply to be joined.  

Case management may need to deal with: (a) do the members of the management committee know of the proceedings? (b) is there any objection to the proceedings continuing as they have begun? (c) is there any conflict of interest or disagreement between committee members which may require one or more to be added? (d) is there any likely problem of enforcement unless all or most members of the committee of the UA are made respondents?

The EAT anticipated there would be many cases where the issues would not arise. Employment Judges need to be alert to the issues particularly where the employee or the UA does not have experienced legal representation. If specific allegations are made against a member of the management committee, the EAT thought that member should be joined as the interests and concerns of that member may differ from those of the committee generally.

Anyone wanting to catch up on a little TUPE, there is Simon Anderson and Catherine Knowles' TUPE: pitfalls, perils and practice