The claimant brought unfair dismissal proceedings against 2 respondents who she claimed were both her employers. The claimant had no documentary evidence as to the identity of her employer but the Tribunal’s decision as to the identity was eventually based upon a letter which was signed by the second respondent, saying that company documentation should have shown that the first respondent was the person doing the trading and that the second respondent used to be involved in the business but wasn’t at the time of writing of the letter. This evidence led the Tribunal to conclude that the first respondent, but not the second, was the employer of the claimant and ruled that the claimant had been unfairly dismissed. Furthermore, the Tribunal said they would not have expected the first respondent to claim to be the employer, which he did, if he was not. The claimant appealed.

The EAT allowed the appeal. The ET should have made findings as to whether they accepted the evidence from the claimant that it was the second respondent who had interviewed her and offered her the job. The Tribunal was entitled to take into account the fact that the claimant had no documentary evidence as to who her employer was, but the significance of this depended on other evidence, about which the Tribunal made no findings.

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Appeal No. UKEAT/0546/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 July 2011

Before

HIS HONOUR JUDGE RICHARDSON

MRS L TINSLEY

MISS S M WILSON CBE

MS J WILLIAMS (APPELLANT)

VANCE MILLER & ALAN FORD T/A KITCHENS, KITCHEN DREAMS

AND ROCK SOLID KITCHENS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR J HOBSON (of Counsel)
Direct Public Access Scheme

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

CONTRACT OF EMPLOYMENT

There was an issue as to the identity of the Claimant's employer. The Tribunal should have approached that issue by making findings as to the circumstances in which she was interviewed and offered employment and as to whether there were any subsequent changes.

1. This is an appeal by Ms Janice Williams against part of a judgment of the Employment Tribunal sitting in Manchester (Employment Judge Sherratt presiding) dated 27 July 2010. She brought a claim of unfair dismissal against Mr Vance Miller and Mr Alan Ford. Her case was that they ran businesses under a variety of names "Kitchens", "Kitchen Dreams" and "Rock Solid Kitchens" and that they were both her employers. Her claim succeeded against Mr Ford: she was awarded compensation in the sum of £9,442.30. But her claim failed against Mr Miller: the Tribunal held that he was not her employer. Against that finding Ms Williams appeals.

1. Neither Mr Ford nor Mr Miller have taken part in the appeal; Mr Ford filed an Answer late and did not respond to the Appeal Tribunal's request to file an application for an extension of time.

1. Ms Williams issued her claim form in January 2010. She gave the names of Mr Miller and Mr Ford as Respondents, together with the trading names of the businesses and a business address – Maple Mill, Oldham. She said her employment began on 24 July 2006 and ended on 23 October 2009 suddenly and unfairly.

1. A response form was lodged on 2 February 2010. The details of the Respondent given were "Rock Solid Kitchens" and the contact name Alan Ford. It was said that the business made kitchen components and employed 60 people. The dates of Ms Williams's employment were admitted. It was alleged that Ms Williams had been dismissed on performance grounds. The response form also said:

"The Claimant was employed by Alan Ford t/a Rock Solid Kitchens not Vance Miller as stated."

1. The hearing took place on 19 July 2010. Ms Williams and Mr Ford both attended in person. Mr Miller did not attend.

1. Ms Williams gave evidence that the person who interviewed her and offered her a job in 2006 was Mr Miller. It was her case that Mr Miller and Mr Ford worked closely together running a variety of businesses. She believed them both to be her employers. Mr Ford, however, said that he was her employer.

1. It seems that virtually no documentary evidence of the contractual position was produced either by Ms Williams or Mr Ford. However, Ms Williams did produce a letter by Mr Miller to a third party, Mr Welch (who may have been a trading standards officer), dated 14 February 2009. This letter was written by Mr Miller on notepaper headed "Rock Solid". It refers to Mr Welch working with "us". It continues later however:

"It is only as a result of me receiving your most recent letter that it has now come to my attention that the 'Rock Solid Kitchens' contracts do not show that Alan Ford is the proprietor. This has now been changed and every new pad that is sent out to salespeople and designers will carry this now.

With regards to the trading relationship, at present and for the last few years I have been the manufacturer, importer and supplier of nearly everything to Alan Ford trading as either 'Rock Solid Kitchens' or 'Kitchens'. I have in the past also retailed myself most recently as 'Kitchens' and 'Maple Industries'. 'Maple Industries' also being my trade name. As for the flow of moneys the truth is I don't have a clue as to whether I am coming or going, reasons for this being that I do not have a bank account, despite having tried to open one with every bank in the country both Alan and myself are using many different bank accounts to operate our individual businesses. We have been left with no alternative but to resort to using different accounts as we believe Oldham Trading Standards quite regularly write to the banks that we use informing them that we are currently being investigated for 'conspiracy to defraud' thus resulting in the closure of our accounts."

1. The Tribunal's reasons were as follows.

"1. This is the Tribunal's judgment in the case of Ms Janice Williams against Vance Miller and Alan Ford trading as Kitchen Dreams and Rock Solid Kitchens. The Tribunal today has heard from Ms Williams and it also heard from Mr Alan Ford representing himself.

2. Mr Ford has told us that it was he who employed the claimant and not Mr Vance Miller or he and Mr Miller. Ms Williams has told us that Vance Miller interviewed her and she thought he was the employer but in the absence of any contract of employment she is not able to prove by documentary evidence who the employer was.

3. She has produced to the Tribunal a letter which was signed by Mr Miller in February 2009. In that letter he says that documentation should have shown Mr Ford being the person doing the trading and that he used to be involved in the businesses but wasn't at the time of writing that letter. The evidence that we have leads us to the conclusion that Mr Ford, rather than Mr Ford and/or Mr Miller was the employer of the claimant. Furthermore we would not expect Mr Ford to come here to claim to be the employer and open himself up to potential liability if he was not so our first factual finding is to the effect that the claimant was employed by Mr Ford."

1. On behalf of Ms Williams we have received skeleton arguments from Mr Johnson of the Oldham Law Centre and Mr Hobson, counsel, who has addressed us. It is submitted that the Tribunal's reasoning on this issue is unsound; that the Tribunal should have made findings about the circumstances in which she was interviewed and offered employment by Mr Miller, and had regard to those findings; that the Tribunal placed undue weight on her inability to produce written evidence; and that the Tribunal misunderstood the letter dated 14 February 2009 or drew perverse conclusions from it.

1. We have considerable sympathy for the Tribunal, which appears to have had very limited documentary evidence when it would seem that at least some relevant documentary evidence must have existed. We think, however, that the Tribunal ought to have approached its task in the following way.

1. It was common ground that Ms Williams was employed in July 2006. The first question for the Tribunal was – by whom was she employed in 2006? Was it, as she said, by Mr Miller, acting on behalf of himself and Mr Ford? Or was it by Mr Ford alone?

1. On this question the Tribunal certainly had evidence from Ms Williams that it was Mr Miller who interviewed her and offered her employment – as she understood it, to work for him and Mr Ford in a variety of businesses. The Tribunal has made no findings as to whether it accepted this evidence. It has not made any finding as to who interviewed her and made the offer of employment. It does not, indeed mention that it was her case that Mr Miller actually offered her the employment.

1. It is unclear what if anything Mr Ford said in response to this evidence – for example, whether he accepted its truth, and if so why Mr Miller was interviewing and offering employment to Ms Williams when (as Mr Ford was apparently saying) he had no interest in any business for which she was being employed. The Tribunal has not made any findings concerning Mr Ford's evidence about the employment of Ms Williams in 2006.

1. The Tribunal was, of course, entitled to take into account the fact that Ms Williams had no documentary evidence as to who her employer was. But the significance of this will depend on other evidence, about which the Tribunal made no findings. Was she given written particulars of employment? Why did neither she nor Mr Ford produce such an obvious document if it existed? Without such findings it is impossible to evaluate whether it is significant that Ms Williams had no documentary evidence.

1. We appreciate the limited evidence which the Tribunal had before it. We think, however, that it had to start with the evidence which was available about the circumstances in which Ms Williams was taken on, and make findings about that evidence. It is no doubt possible that Mr Miller interviewed Ms Williams and offered her employment when he had no interest in any of the businesses for which he was offering her employment and was not a party to the contract; but it is not an obvious inference to draw, especially given Ms Williams' understanding to the contrary.

1. Even if the Tribunal found that Ms Williams was originally employed by Mr Miller and Mr Ford working together, it is of course possible that something changed after that time. This might have been another question for the Tribunal to consider. Again it is unclear what Mr Ford said about this.

1. It is not easy to see from the Tribunal's reasons what conclusions, if any, it reached from the letter dated 14 February 2009. It is, we think, a rather remarkable letter. It is written on Rock Solid notepaper using the word "we" as if Mr Miller was indeed part of Rock Solid; and it confirms involvement in every part of the business in the past, even though it suggests that Rock Solid Kitchens is now a trading name of Mr Ford.

1. In the end the Tribunal seems to have placed great reliance on the fact that Mr Ford came along and admitted being the employer. This is a factor the Tribunal was entitled to take into account in a general way, but in this case a degree of caution would be required given the terms of the letter in February 2009. Mr Miller and Mr Ford may have reasons for re-arranging, as between themselves, the way their businesses were operated.

1. At all events, reliance on Mr Ford's admission is not a substitute for the process of reasoning which we have outlined. The Tribunal ought to have made findings about the circumstances in which Ms Williams was employed; and, if she was employed by Mr Miller as well as Mr Ford, then made findings as to whether anything had subsequently changed, and if so how.

1. For these reasons, sympathetic though we are to the position in which the Tribunal found itself, the appeal will be allowed and the question whether Ms Williams was employed by Mr Miller as well as Mr Ford remitted for re-consideration.

1. It is not clear to us what case management preceded the hearing before the Tribunal. We think it is desirable that (at least on paper) some further consideration should be given to case management orders before the next hearing. Ms Williams and the Tribunal may wish to consider further steps to ensure that Mr Miller personally is notified (now that Mr Ford's interest in the proceedings has ceased) together with orders for disclosure and witness statements.