Wrong employer named, WRC lacked jurisdiction to proceed.

The Complainant referred a complaint under the Employment Equality Acts against an entity named “Berkshire Hathaway European Insurance”. She stated that, following the return of correspondence in relation to an earlier complaint, she obtained legal advice and issued the present complaint. She accepted that her contract of employment and payslips identified “Resolute Management Limited” as her employer but maintained that this entity dealt with payroll only and that she believed she was employed by “Berkshire Hathaway European Insurance Limited”. She said her understanding was based on her own enquiries, including online searches, and on her belief that the entities were connected, shared an address, or formed part of the same insurance group. She maintained that the named Respondent was appropriate and argued that her complaint should proceed to substantive hearing. She also disputed the Respondent’s position on time limits and sought to have the equality complaint heard on its merits.

The Respondent raised a preliminary objection that the complaint had not been brought against the correct legal entity. It submitted that the Complainant was employed by “Resolute Management Limited”, which was clearly identified on her contract of employment and payslips. The WRC complaint form did not name that entity, and instead named “Berkshire Hathaway European Insurance”, which the Respondent said was not a registered legal entity in Ireland. It further submitted that the Complainant had obtained legal advice before issuing the present complaint yet still failed to name the correct employer. The Respondent did not consent to amendment or substitution of the named Respondent and submitted that the WRC had no statutory power under the Employment Equality Acts to substitute a different legal entity. It argued that any shared address, corporate connection or group relationship did not displace the need to sue the correct legal employer.

The Adjudicating Officer determined the matter as a preliminary issue, finding that it was appropriate to do so because the objection, if successful, would dispose of the complaint. It was accepted that the Complainant’s contract and payslips identified “Resolute Management Limited” as her employer. That entity was not named on the WRC complaint form. Nor was “Berkshire Hathaway European Insurance Limited” named, although that was the entity the Complainant said she believed employed her. Instead, the complaint was issued against “Berkshire Hathaway European Insurance”. The Adjudication Officer held that this was not a minor typographical error or mere misdescription. The correct legal entity did not appear on the complaint form. The WRC had no jurisdiction to amend or substitute one legal entity for another under the 1998 Act. The complaint had therefore not been brought against the correct Respondent, and the WRC had no jurisdiction to inquire into it.

Employers should:                

• Ensure that contracts, payslips, handbooks and HR correspondence consistently identify the correct legal employer. This is particularly important in group structures, retail concessions, multinational subsidiaries and businesses using trading names. Where employees interact with a brand or group company, but are legally employed by another entity, the documentary trail should remove any ambiguity. 
  
  
• Note that where a WRC complaint is issued against the wrong entity, employers should consider raising a preliminary objection at the earliest opportunity. If the named Respondent is not the legal employer, and if the correct entity is not identified on the complaint form, the employer may argue that the WRC lacks jurisdiction. The objection is strongest where the employee’s own contract and payslips clearly name a different legal employer, and where the error is not merely typographical.
  
  
• Avoid inadvertently consenting to substitution or amendment. Correspondence should make clear, where appropriate, that any participation is without prejudice to the jurisdictional objection.

The full case can be found here.