Mon, 19 Jul 2010
A recent experience, shortly due to form the subject matter of an EAT decision, demonstrates the potential pitfalls and confusion surrounding the issue that forms the title of this report.
The only reported decision with direct bearing on the subject is that of Affleck v. Newcastle Mind  UKEAT/0332/09, which confirms that “the management committee and its members for the time being” are the employer in the context of an unincorporated association (see paragraphs 7 and 10) and are therefore the correct target to be sued (paragraph 13). This case is also authority for the proposition that individual members of the management committee may act in a ‘representative capacity’ as ‘representative respondent(s)’ on behalf of other members. However, the question arises: is it for the members of the management committee to determine whom should act in a representative capacity? If so, does this mean that in the first instance all members must be notified of the claim and/or named in the ET1 (an approach perhaps supported by the obiter comment of HHJ Hicks QC in Sivanandan v. HARE EAT/616/99 at paragraph 5)? Clearly, this would ensure that all potentially liable individuals (the liability being joint and several) would be on notice of the claim. The alternative approach would be to allow a Claimant to pursue any one member, or several selected targets and leave the onus on those members to ensure that all other unnamed members are notified/consulted. A further question concerns the role of the Tribunal in case managing such claims: should directions be given concerning the notification of members of the managing committee and/or the identification (if possible) of representative respondents etc?
It is hoped that some light will, in due course, be shed on an area that has to date not been the subject of close scrutiny in the Tribunal context.
[Since this article was written the decision in the case in question (Nazir and Aslam v. Asim) has been handed down by the EAT. The citation is UKEAT/0332/09]
by Charles Crow