Appeal No. UKEAT/0007/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 March 2010

Before

THE HONOURABLE MR JUSTICE BEAN (SITTING ALONE)

DR G C THORBURN (APPELLANT)

1) MS I PEREZ DHERVES; 2) ARPOLITH DIREKT LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

AMENDED

For the Appellant
DR GEORGE THORBURN (The Appellant in Person)

For the First Respondent
MS J ANDREWS (Representative)

Warwickshire Employment Rights Service
Harefield Road
Nuneaton
Warwickshire
CV11 4HB

For the Second Respondent
No appearance or representation by or on behalf of the Second Respondent

CONTRACT OF EMPLOYMENT

JURISDICTIONAL POINTS: Worker, employee or neither

Employment tribunal was entitled to find that after the company employing her ran out of funds to pay wages the Claimant had worked for the first respondent, the company's managing director, personally.

1. This is an appeal by Dr Thorburn from a decision of Employment Judge Butler sitting alone in the Birmingham Employment Tribunal on 19 June 2009. I have already given a ruling today refusing an application to admit fresh evidence. I therefore have to decide whether or not the Employment Judge was correct in law on the material before him in deciding that the Claimant was working for Dr Thorburn personally from 1 September 2008 until 17 October 2008. If so then she was entitled to the money awards which the Employment Judge made in her favour of £458.50 for accrued holiday pay, £3,208.86 unpaid wages and a further £146.20 holiday pay and £649.81 representing two weeks' net pay for failure to provide written particulars of employment.

1. Dr Thorburn is substantially disadvantaged in this litigation, as I pointed out in the earlier ruling, by the fact that he chose not to attend the hearing before the Employment Judge on 19 June.

The material before the Employment Judge was a bundle of documents, which I have been shown, consisting of forms ET1 and ET3 and a further 32 pages, plus the evidence of the Claimant herself. (The Claimant is recorded as having appeared in person but I am told by her lay representative, Jenny Andrews, who has appeared before me today, that she had the services of the same representative before Judge Butler. In any event, it is beyond doubt that the Claimant gave oral evidence and that she was the only witness.) The Judge made findings of fact as follows.

1. The Claimant began employment with Arpolith Direkt Ltd, the First Respondent, of which Dr Thorburn was then Managing Director, as an interpreter on 1 April 2008. She also undertook personal assistant duties for Dr Thorburn as Managing Director of Arpolith. The company got into difficulties. At the end of August the Claimant was aware that she would no longer receive wages from the First Respondent. In an e-mail included in the bundle, written in October, Dr Thorburn wrote that he and his wife "stopped the company trading on 1st September 2008". This is consistent with the judge's finding that as at the end of August the Claimant was aware that she would no longer receive wages from the company.

1. The judge then found that some time in September Dr Thorburn asked the Claimant if she would attend work. Although she found this surprising, the Claimant did return to work, hoping that her salary would be paid. The judge found that she returned to work "for Dr Thorburn who advised the Claimant to use the title 'DGT & Associates', as opposed to Arpolith Direkt Ltd when she greeted people on the telephone", and went on:

"The claimant continued to work for Dr Thorburn during September and October but did not initially understand who she was working for especially as Dr Thorburn had told her the first respondent was no longer trading."

1. There is a series of six pages, or more accurately eleven slides on six pages, of a PowerPoint presentation copied in a bundle which was before the judge. Although headed Arpolith at the top of page 1 it has also on page 1 the name "Dr George Thorburn, DGT & Associates". The composition of this presentation was work which, the Employment Judge found, the Claimant undertook for Dr Thorburn personally during September and October. However, she was not paid anything for September and October. She was sent payslips which the judge reverted to later in his judgment, as shall I.

1. On 17 October Dr and Mrs Thorburn resigned their directorships of Arpolith Direkt Ltd. On the same date the Claimant was sent a P45 by Arpolith. The judge went on:

"Throughout October and onwards, the claimant continued to work for the second respondent (Dr Thorburn) in the name DGT & Associates but she was not paid by him."

1. On 11 November an e-mail was sent by Dr Thorburn to a Senor Duran saying that he would be prepared to do a live presentation on behalf of Arpolith. He signed it 'Dr George Thorburn, DGT & Associates'.

1. Midway through November 2008 Dr Thorburn advised the Claimant her services were no longer required. On 14 December an e-mail in the bundle from him to her says:

"If all goes well I can pay you and Rafa what is due and contract you both long term."

[signed] George

1. The Claimant raised a grievance on 23 January 2009.

1. As to the payslips the judge said this:

"24, … The fact that further payslips were given to the claimant in September and October 2008 [by Arpolith]

does seem to contradict the ending of her employment on 31 August 2008. While I do not understand Dr Thorburn's motives in providing these payslips, their existence does not necessarily indicate that the claimant was to be paid by the first respondent and, indeed, in the light of the documents in the bundle, it appears that Dr Thorburn had effectively "shelved" the first respondent while it had no funds with effect from the end of August 2008 and had attempted to continue to raise funds in his own name trading as DGT & Associates in the hope that the first respondent could at some time trade again. The fact that the claimant received payslips from the first respondent for September and October 2008 does indicate that Dr Thorburn accepts she was working for somebody during this time. Since he had told the claimant the first respondent had no funds to pay her, she must logically be found to have been working for him. Any other conclusion would necessarily mean Dr Thorburn deliberately duped the claimant into working for the first respondent knowing it would never pay her."

These were findings which the judge was entitled to make.

1. Dr Thorburn told me, and I accept, that the payslips were dealt with by the company's accountants who were also the company secretary. They show basic pay of £1,750 for the month of September less tax and national insurance and pay for 13 days at work during October with a figure of £1,050 less tax and national insurance. However, the fact that the accountants sent those payslips cannot, as I see it, alter the factual situation which the judge found to have existed, namely that Dr Thorburn had asked the Claimant to attend work, asked her to use the title DGT & Associates and asked her to prepare the PowerPoint presentation, which was itself in the name DGT & Associates translated into Spanish.

1. Dr Thorburn has accepted rightly that it is possible in law for an individual to have two employers simultaneously. He is right to do so and that is why the Employment Judge was entitled to conclude at paragraph 25 that during September and October 2008 the Claimant was still technically employed by the First Respondent but working for the Second Respondent. Putting it as he did in paragraph 26, she ceased to be paid by the first Respondent at the end of August 2008 but continued to be employed until 17 October and that she was employed by Dr Thorburn from 1 September in circumstances where she was entitled to conclude that he would be responsible for her wages. Accordingly, I do not find that the Employment Judge on the material before him made any error of law. It may be that had Dr Thorburn attended before the Employment Judge and deployed the more extensive evidence which he unsuccessfully sought leave to adduce before me; or even if he had simply attended and given evidence himself, the outcome might have been different; but that is not the question that I have to decide.

1. It follows that this appeal must be dismissed. I am grateful to both sides for the helpful way in which the hearing has been conducted today.

1. I am not prepared to grant leave to appeal on Dr Thorburn's application. It seems to me that this a case which turns very much on its facts and does not raise any issue of law appropriate to be dealt with by the Court of Appeal. It is open to him to make an application direct to the Court of Appeal if he wishes to do so.