Case Numbers: 2204181/2022

and 2208896/2022

EMPLOYMENT TRIBUNALS
Claimant: Rowaa Ahmar

First Respondent: The Cabinet Office

Second Respondent: Michael Bourke

Third Respondent: Simon Case

Fourth Respondent: Alex Chisholm

Fifth Respondent: Sarah Harrison

Heard at: (in private[; by telephone]) On: 8 March 2023

Before: Tribunal Judge McGrade

Appearances
For the claimant: N Gyane (counsel)
For the respondent: S Hornblower (counsel)

RESERVED JUDGMENT
The application to have the third, fourth and fifth respondents removed from the
proceedings under rule 34 of the Employment Tribunals Rules of Procedure 2013
is refused.

REASONS
1. This was a preliminary hearing to determine an application by the respondents to
remove the third, fourth and fifth respondents on the basis that they had been
wrongly included as a party to this claim. This application was made at a case
 Case Numbers: 2204181/2022
and 2208896/2022

management preliminary hearing. Due to the limited time available to me, I agreed
with both parties that I would hear oral submissions from parties and reserve my
judgement. I have also taken into account the skeleton argument provided by the
respondent.

2. The claimant was previously a civil servant. She undertook early conciliation
between 20 and 23 May 2022, and lodged a first claim on 23 June 2022. She
complains of direct discrimination and harassment on the grounds of sex and race,
and victimisation.

3. She undertook early conciliation again between 11 and 13 October 2022, and
lodged a second claim on 20 November 2002. She also complains of direct
discrimination and harassment on the grounds of sex and race, and victimisation
in her second claim.

4. The claimant has named five respondents, namely The Cabinet Office, Michael
Bourke, Simon Case, Alex Chisolm and Sarah Harrison. The third, fourth and fifth
respondents are all senior civil servants.

The respondent’s submissions

5. The application has been made on the basis that the third, fourth and fifth
respondents played such minor roles in the issues giving rise to these claims, that
they should be removed from the proceedings.

6. It was submitted that Simon Case, as the head of the Civil Service, has been
named as a respondent, but has been mentioned only three times in the entirety
of the claimant’s pleadings, all of which relate to post-termination incidents. At no
point are there any substantive allegations of discrimination against him.

7. Similar considerations apply to Alex Chisolm. He is also a senior civil servant.

Although he is specifically referred to in the claimant’s ET1, the allegations against
him predate the earlier claim. At no point is it alleged that he was the perpetrator
of any acts of discrimination.

8. While it is accepted that Sarah Harrison has been named in the seventh grievance
submitted by the claimant, she is named as a senior civil servant and not as a
perpetrator of discrimination.

9. It was also submitted that, in the event that adverse findings are made against
individuals, the tribunal has power under Rule 34 to revisit its decision , and to add
them back in as respondents, should this be considered appropriate.

The claimant’s submissions

 Case Numbers: 2204181/2022
and 2208896/2022

10. It is the claimant’s position that rule 34 only permits the removal of a respondent if
they have been wrongly included. It is the claimant’s position that the respondents
have not been wrongly included. There are factual issues that have to be
determined by the tribunal as to how far these individuals played a part, and that it
would not be appropriate to dismiss these individuals, until that exercise has been
carried out.

11. The claimant has set out in her second application (para 6, page 91), that she
resigned because of what she believes to be the failures of all three respondents,
which included breaking the rules, to retaliate against her. The third respondent
has been specifically referred to in paragraphs 52,75,75,80 and 82 of the list of
issues. He has also been referred to at paragraph 6, 36, 40 and 42(xii) of the
second claim.

12. The fourth respondent has been specifically referred to at paragraphs 2(i), (ix), 6,
16, 18,30,33 and 42(x) of the second claim. He is also named as the perpetrator
of discrimination at paragraphs 67, 76-78 and 80-82 of the list of issues.

13. The fifth respondent has been specifically referred to at paragraphs 2(iii) and (v),
5,6,7 and 42 (ix) and (xi) of the second claim. She is also named as the perpetrator
at paragraphs 17, 69 and 79 of the list of issues.

14. It was also submitted that there was little or no prejudice to the third, fourth and
fifth respondents, if they remain as additional respondents, as they will be required
to give evidence. Reliance was also placed upon the fact that the respondent
proposed to rely on the statutory defence contained within section 109(4) of the
Equality Act 2010 in respect of all claims, which could mean that the tribunal cannot
hold these individuals liable for their actions.

15. Finally, it was submitted that the course of action proposed by the respondents of
removing these individuals, while leaving open the possibility of adding them back
in at a later stage, with involve additional work and potential delay.

The relevant law

16. Rule 34 of the Employment Tribunals Rules of Procedure 2013 provides as

follows:-
The Tribunal may on its own initiative, or on the application of a party or any
other person wishing to become a party, add any person as a party, by way of
substitution or otherwise, if it appears that there are issues between that person
and any of the existing parties falling within the jurisdiction of the Tribunal which
it is in the interests of justice to have determined in the proceedings; and may
remove any party apparently wrongly included.
 Case Numbers: 2204181/2022
and 2208896/2022

17. Paragraphs 19-21 of the Presidential Guidance – General Case Management

provides as follows:-

19. The Tribunal may also remove any party apparently wrongly included. A
party who has been added to the proceedings should apply promptly
after the proceedings are served on them if they wish to be removed.

20. A party can also be removed from the proceedings if the Claimant has
settled with them or no longer wishes to proceed against them.

21. The Tribunal may permit any person to participate in proceedings on

such terms as may be specified in respect of any matter in which that
person has a legitimate interest. This could involve where they will be
liable for any remedy awarded, as well as other situations where the
findings made may directly affect them

Discussion and decision

18. Neither party was able to provide me with any authority as to the scope of Rule 34
and the extent to which this power can be used to remove additional respondents
on the basis that their alleged involvement in any discriminatory conduct was said
to be of a minor nature.

19. The third, fourth and fifth respondents are all referred to in the claims and appendix
to the draft list of issues. It is clear that many of the allegations against these
individuals involve omissions rather actions carried out by them. However, at this
stage, I must take the claimant’s case at its highest and it was not argued that none
of the claims against an individual respondent could succeed, but simply that the
allegations against them indicated that they performed peripheral roles in the
events giving rise to the claims.

20. I consider the wording of rule 34, and in particular the reference to removing “any
party apparently wrongly included” indicates that this power is intended to be used
in circumstances where the claim is brought against an individual or corporate
body, and that individual or corporate body cannot be held liable for the claims that
have been brought against it. I am not satisfied it is intended to be used in
circumstances where an additional respondent is alleged to have played only a
relatively minor in the discriminatory conduct. I do however consider that the
general case management powers contained within rule 29 are sufficiently wide to
enable me to remove additional respondents, if this is in accordance with the
overriding objective.

21. It is clear that the part allegedly played by the third, fourth and fifth respondents is
relatively minor. However, the first respondent has sought to introduce, without
objection, a statutory defence under section 109(4) of the Equality Act 2010 in
 Case Numbers: 2204181/2022
and 2208896/2022

respect of all the claims. Should the first respondent succeed in the statutory
defence, the claimant will be unable to obtain an award against the third, fourth
and fifth respondents, if they have been removed from the proceedings. I consider
this is a factor to which I should attach substantial weight. I also consider the
proposal to remove the third, fourth and fifth respondents, on the basis that they
can be added as additional respondents, should the allegations against them be
upheld, is not an appropriate course of action as it could involve additional expense
and delay. In these circumstances, I reject the application to remove the third,
fourth and fifth respondents.

Tribunal Judge McGrade

Date 28 March 2023

JUDGEMENT SENT TO THE PARTIES ON

28/03/2023