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Adding a Respondent
Rad Kohanzad appeared for the Appellant in Mileham v Zeus Limestone Ltd and others [2025] EAT 105, an appeal concerning an Employment Tribunal's refusal to add an individual as a second respondent to an employment claim. The original employer had entered creditors' voluntary liquidation, raising concerns about whether the claimant could obtain an effective remedy. The Employment Appeal Tribunal (EAT) allowed the appeal because the Employment Judge had failed to address the claimant's potential hardship and had not adequately explained the prejudice said to arise from adding the individual. The application was remitted for fresh consideration, rather than granted outright.
Background: adding an individual respondent after the employer's insolvency
The claimant, Mr C Mileham, brought Employment Tribunal claims including unfair dismissal and disability discrimination after his employment with Zeus Limestone Ltd, trading as Rovic Tiles, ended in November 2022. His original claim, presented in March 2023, named the company as the respondent, although it referred to Mr William Edward Doe in the particulars.
The claimant subsequently obtained legal representation. In January 2024, he learnt that the company had become insolvent and entered creditors' voluntary liquidation. His solicitors promptly sought to add Mr Doe as a second respondent, arguing that Mr Doe had control of the company and was personally responsible for the alleged discriminatory conduct.
The application relied on the risk that, without an additional respondent, the claimant might be left unable to enforce any successful judgment against the insolvent company. It also argued that the amendment arose from the same underlying facts and would not disrupt the existing case timetable.
The Employment Judge refused the application in March 2024. The reasons referred to the claimant's failure to name Mr Doe initially, his later legal representation, the absence of an application at an earlier case-management hearing, and the potential prejudice to Mr Doe from being added to a claim already underway. The claimant appealed.
The legal test for adding a respondent
The application was made under rule 29 of the Employment Tribunals Rules of Procedure 2013, which governed amendments at the time. The central question was whether the Employment Judge had exercised the discretion to allow or refuse an amendment lawfully.
In Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, the court explained that a Tribunal should consider all the circumstances, including any injustice or hardship that allowing or refusing an amendment might cause to the existing parties and any proposed additional respondent. The approach in Selkent Bus Co Ltd v Moore [1996] ICR 836 also informs amendment decisions, including consideration of the nature of the amendment, relevant time limits and the timing and manner of the application.
The question is not simply whether the application was late. The Tribunal must consider the relevant circumstances and weigh the competing consequences of granting or refusing it.
There is also an important distinction between the time limits for presenting an employment claim and the factors relevant to an application to amend a claim to add a party. As the EAT explained by reference to British Newspaper Printing Corp (North) Ltd v Kelly [1989] IRLR 222 and Cocking, those are separate questions. An application to add a respondent should not be treated as automatically out of time merely because the original claim was presented earlier.
Why the EAT allowed the appeal
Rad Kohanzad argued that the Employment Judge had failed to weigh the hardship to the claimant against the prejudice to Mr Doe. He also submitted that the reasons did not explain what prejudice Mr Doe would suffer beyond the fact of being joined as a party. The EAT accepted that the decision contained errors of law.
Judge Keith stressed that an Employment Judge is entitled to considerable latitude when making case-management decisions. Nor was the brevity of the original decision itself objectionable: applications of this kind do not necessarily require lengthy reasons.
The problem was the substance of the reasoning. The Employment Judge had expressly referred to prejudice to Mr Doe but had not addressed the claimant's stated hardship if the application were refused. That omission mattered because the application had specifically raised the risk that the claimant would be left without an effective remedy against an insolvent company.
The reasons were also inadequate in explaining the prejudice attributed to Mr Doe. He had not made representations opposing the application before the Employment Judge's decision, and the reasons did not identify any prejudice beyond the prospect of being added to the proceedings. The EAT did not suggest that no such prejudice could exist; it held that the decision did not adequately explain it or demonstrate a proper assessment of the competing interests.
The EAT did not hold that delay was irrelevant. It accepted that the timing of the application could properly be considered, including the fact that there had been an earlier case-management hearing. It also expressed doubts about the realism of expecting the claimant to monitor the employer's solvency, but made clear that this was not material to its finding of legal error.
Outcome: the application had to be reconsidered
The EAT set aside the refusal and remitted the application to an Employment Judge other than Employment Judge Wright, to be selected by the Regional Employment Judge.
Rad Kohanzad argued that there was only one proper outcome and that the EAT should resolve the application itself. The EAT rejected that submission. The balance of prejudice was fact-sensitive, and the potential prejudice to Mr Doe had not yet been properly explored. The EAT therefore concluded that it could not fairly decide that the application had to be granted.
The result was a successful appeal against the procedure and reasoning used to refuse the amendment, not a final ruling that Mr Doe must be added as a respondent. The underlying employment claims were not determined by this EAT decision.
Key legal points
Amendment decisions require a proper assessment of competing prejudice. A Tribunal should consider the hardship that refusal may cause the claimant as well as the prejudice that allowing an amendment may cause a proposed respondent.
Reasons must explain the material reasoning. A short decision can be sufficient, but it must make clear why the relevant factors support the outcome.
Delay is relevant but not automatically decisive. Its significance must be assessed in the circumstances of the particular application.
Adding a party is distinct from presenting a claim within the statutory time limit. The relevant amendment principles should not be collapsed into a simple time-limit question.
These points apply established principles to the particular facts of the case; the judgment does not establish that applications to add individual respondents should generally be granted where a company becomes insolvent.
What this means for someone considering an Employment Tribunal appeal
For someone considering an appeal, Mileham illustrates how a case-management decision may be challengeable where the Tribunal has failed to address a material consideration or given reasons that do not adequately explain its conclusion. A disagreement with the outcome is not enough: the issue is whether the decision contains an error of law.
The case also shows why the precise remedy matters. Even where the EAT finds an error, it may remit the application for a fresh decision rather than determine the issue itself. Here, the claimant still had to establish that adding Mr Doe was justified after the relevant circumstances and potential prejudice had been properly considered.
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Case details
Case: Mr C Mileham v (1) Zeus Limestone Ltd (t/a Rovic Tiles) (in creditors' voluntary liquidation) and (2) Mr William Edward Doe
Neutral citation: [2025] EAT 105
Judgment date: 19 June 2025
Judge: Judge Keith
Case number: EA-2024-000506-RN
Outcome: Appeal allowed; application to add the second respondent remitted to a different Employment Judge
Rad Kohanzad's role: Counsel for the Appellant, instructed by Atkinson Rose LLP
Official judgment: Read the full EAT judgment (PDF)
