Ince Gordon Dadds LLP and Others v Mrs J Tunstall & 7 Others
| Jurisdiction | UK Non-devolved |
| Judge | Judge Eady |
| Neutral Citation | UKEAT/0141/19/JOJ |
| Court | Employment Appeal Tribunal |
| Subject Matter | Practice,Procedure,Procedure - Postponement or stay,Not landmark |
| Date | 19 June 2019 |
| Published date | 20 June 2019 |
Copyright 2019
Appeal No. UKEAT/0141/19/JOJ
UKEAT/0143/19/JOJ
UKEAT/0144/19/JOJ
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON, EC4A 1NL
At the Tribunal
On Monday 10 June 2019
Judgment Handed Down on 19 June 2019
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
INCE GORDON DADDS LLP AND ORS APPELLANTS
MRS J TUNSTALL AND ORS RESPONDENTS
Transcript of Proceedings
JUDGMENT
UKEAT/ 0141/19/JOJ
UKEAT/0143/19/JOJ
UKEAT/0144/19/JOJ
APPEARANCES
For the First to Third Appellants
(Mr C Dwyer, Mr M Volikas & Mr Biggs)
For the Fourth Appellant
(Ince Gordon Dadds LLP)
For the Fifth Appellant
(Mr J O’Keeffe)
MISS GHAZALEH REZAIE
(of Counsel)
Instructed by:
Charles Russell Speechlys LLP
5 Fleet Place
London
EC4M 7RD
MS KATHERINE APPS
(of Counsel)
Instructed by:
Ince Gordon Dadds LLP
Algate Tower
2 Lemon Street
London
E1 9QN
Not in attendance
For the Respondent Ms Tunstall
(Mrs J Tunstall)
MR MARK GREAVES
(of Counsel)
Instructed by:
Leigh Day Solicitors
Priory House
25 St. John’s Lane
London
EC1M 4LB
UKEAT/0141/19/JOJ
UKEAT/0143/19/JOJ
UKEAT/0144/19/JOJ
-1-
A
B
C
D
E
F
G
H
SUMMARY
PRACTICE AND PROCEDURE – Postponement and stay.
Practice and Procedure – Stay – Paragraph 43(6) Schedule B1 Insolvency Act 1986
The Claimant had commenced Employment Tribunal (“ET”) proceedings against eight
Respondents. Subsequently, the first two Respondents (one of which had been the Claimant’s
employer) went into administration and a stay was imposed on the proceedings under paragraph
43(6) Schedule B1 Insolvency Act 1986. Although accepting (absent the consent of the
administrators or permission from the Companies Court) that stay must be remain in respect of the
First and Second Respondents, the Claimant applied for the proceedings to be continued in relation
to the remaining Respondents (the Third to Seventh being employees or agents of the First and/or
Second Respondents; the Eighth Respondent being said to be a the relevant transferee of the First
and/or Second Respondent’s business (or relevant part) under the Transfer of Undertakings
(Protection of Employment) Regulations 2006 (“TUPE”)). The ET agreed with the Claimant,
holding that paragraph 43(6) did not prevent legal proceedings being continued in respect of stand-
alone claims against other Respondents (those proceedings being pursued against the Third to
Seventh Respondents by virtue of section 110 Equality Act 2010; against the Eighth Respondent
under regulations 4 and 7 TUPE). The ET considered the potential prejudice the remaining
Respondents might face, in particular in relation to disclosure (it being accepted that the First and/or
Second Respondents would possess most of the relevant documentation) and privilege. It did not,
however, consider these were issues that necessarily arose from the stay under paragraph 43(6) but,
in any event, took the view that orders for disclosure could nevertheless be made against the First
and/or Second Respondents under rule 31 ET Rules 2013; more generally, the ET did not consider
that there was yet any evidence to suggest that disclosure/privilege issues would arise such as to give
rise to any overwhelming prejudice against the Third to Eighth Respondents.
The Third, Fourth, Fifth, Seventh and Eighth Respondents appealed.
Held: dismissing the appeals
Notwithstanding the potential vicarious liability of the First and/or Second Respondent (whether by
reason of section 6 Limited Liability Partnership Act 2000 or under section 109 Equality Act
2010) and the likely application of the doctrine of res judicata (understood as giving rise to a cause
of action or to an issue estoppel), paragraph 43(6) Schedule B1 Insolvency Act 1986 did not require
the ET to continue the stay in relation to the Third to Eighth Respondents; the issue was not one of
jurisdiction but of case management discretion. The ET had taken into account the potential
liabilities faced by the First and/or Second Respondents and the likely application of the doctrine of
res judicata but had permissibly concluded that it was a matter of choice for the administrators as to
whether they consented to the proceedings being continued against the First and/or Second
Respondents in these circumstances: that was not a “choice fallacy”, as the Respondents contended
as the option of consenting to the continuation of proceedings was expressly allowed by paragraph
43(6). As for the potential prejudice to the remaining Respondents, the ET had taken proper account
of the risk to professional reputation and of the difficulties arising in respect of disclosure and
questions of privilege. It had correctly identified that these were largely issues arising in the
proceedings in any event, not as consequences of the stay. It had also been right to point to its power
to make disclosure and information orders under rule 31 of the ET Rules 2013. The ET had,
moreover, not discounted the possible problems that might arise but had decided it would be wrong
to simply assume that this would necessarily arise be so, allowing that this might be a question to be
revisited if there was actual evidence of prejudice faced by the Respondents.
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