The complainant was awarded €63,000 by the Equality Tribunal who found that the complainant had correctly identified the respondent as her employer going on to address the substantive complaints. The respondent did not engage with the Tribunal, apparently through inadvertence, but the Court found “the Equality Officer correctly held that in either case a change in the name of the respondent for the purposes of his investigation was unnecessary”.

The Court was satisfied that the complainant named the wrong respondent as a result of a bona fide mistake where the respondent appeared to hold itself out as her employer in earlier proceedings. “Moreover, the Respondent accepted proceedings in the within case and failed to deny that it was the Complainant’s employer until the initiation of this appeal, some 30 months after the claim was first initiated”.

However, the Court accepted that the complainant was never employed by the respondent and concluded that the only question to be addressed is whether the actual employer could be substituted for the named respondent. The Court then looked at caselaw including County Louth VEC v Equality Tribunal, and concluded that the Court “should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court” pursuant to Order 15 Rule 13 of the Rules of the Superior Courts (SI 15 of 1986).

It then considered Sandy Lane Hotel Ltd v Times Newspapers Ltd ([2011] 2ILRM 139) where that rule was considered. The Court concluded “that while there are some divergent decisions on this subject, the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party”.

In other words, once the time limits are passed the new respondent will not be added. The Court decided that even if it had the power to substitute a respondent it would be inappropriate to do so in this case. The Court noted that the complainant has initiated new proceedings and whether that case is statute barred will be for the Equality Tribunal to decide. Since Travelodge Management was not the complainant’s employer at any time material to this claim, in spite of the bona fides of the mistake and since the employer cannot now be substituted for Travelodge Management Ltd., the respondent has no liability and the decision of the Tribunal is set aside.

Why is this case of interest?

  Previously in the @Resonance case, the Court found that respondents cannot be substituted but this decision suggests that if substitution was requested within 6 months, extendable to 12 months, it might be considered.

  This means that in a situation where it is still in time for a complainant to lodge a complaint against the new respondent it may be permissible to add them to the original claim.

  Of course readers are also referred to the Aziz case, EDA151, where Directors were named, which has been remitted back to the Tribunal.

Full case decision:

https://www.workplacerelations.ie/en/Cases/2015/July/EDA1511.html