Appeal No.	 EAT/853/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR P M SMITH
MISS S M WILSON

MR A R KAYE	APPELLANT

MRS S J GREENER & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr S Mills
(of Counsel)
Messrs Littlejohn & Co.
Solicitors
118 Kenton Road
Kenton
Harrow
Middlesex HA3 8AN	

	JUDGE PETER CLARK:	By an Originating Application presented to the London (North) Employment Tribunal on 25 June 1997 the Applicant, Mrs Greener (formerly Miss Rosenberg) complained of non-payment of maternity pay and other matters against initially two named Respondents.  At a hearing held before a full Employment Tribunal on 13 January 1998, following an earlier directions hearing held on 17 October 1997, leave was granted to her to amend her Originating Application to add a complaint of sex discrimination contrary to the 1975 Act.  Mr Kaye was also joined as a third respondent at the earlier directions hearing.

	At the later hearing in January the Tribunal proceeded to consider a preliminary issue as to which of the named Respondents employed the Applicant.  The three Respondents were (1) Liasadata Limited (in liquidation) (2) First Century Retail Ltd (3) Mr Alan Kaye.

	The Tribunal found that Mr Kaye was the sole director and major shareholder in Liasadata, which company ceased trading in August 1995 and was wound up in August 1996.  He also controlled the second Respondent company, First Century.

	On the evidence before it, the Tribunal made certain findings as to the Applicant’s employment history, in summary that she commenced employment with a Company Springlake Limited also controlled by Mr Kaye in November 1992.  Then in Spring 1993 she transferred to what is described in the Tribunal’s reasons as the head office of Mr Kaye’s retail activities.  At that time she was, the Tribunal found with some uncertainty, employed by Liasadata.  That  position continued until January 1995.

	In 1995 the Applicant relocated with Mr Kaye to new offices in Stanmore.  In August 1995 as we  have said Liasadata ceased trading and from that time First Century the second Respondent  company principally paid her wages.

	In 1995 she moved with Mr Kaye to St. Albans and from January 1996 until she left work on maternity leave, in August of that year the Applicant was paid in cash, either directly by Mr Kaye or out of the cash till with his authority at the St. Albans premises.

	On that evidence the Tribunal concluded that although payment of wages was made by companies controlled by Mr Kaye, she was nevertheless employed by Mr Kaye and not by First Century from at least from November 1995 until she left on maternity leave.

	Against the finding that Mr Kaye was the employer at the relevant time for the purpose of these complaints, Mr Kaye now appeals.  Mr Mills on his behalf has taken four points in support of the appeal.  The first point is that the third Respondent below Mr Kaye was not given proper notice of the preliminary issue which was ultimately determined at the hearing at the 13 January.  We have seen from the Tribunal’s extended reasons the matters which were ordered at the directions hearing on 17 October to be dealt with on the 13 January.  They were first the Applicant’s application to amend her Originating Application to add the sex discrimination claim, that was done on 13 January.  Secondly the preliminary issues as to limitation questions, which were to be heard on 13 January, were then adjourned and finally any further directions.

	It is quite clear to us that when the parties came before the Tribunal on 13 January, the question who was the correct employer was not on the agenda.  We are told by Mr Mills that Counsel who then appeared on behalf of  Mr Kaye, Mr Grundy, made application for an adjournment of this new preliminary issue but that application was refused.  We say at this stage that we shall require the Chairman’s comments on that part of the appeal.  At any rate, the matter proceeded, Mr Mills submits without having been properly prepared and a determination was made. 

	We think it is arguable that in proceeding in these circumstances the Tribunal fell into error, and on this ground, the matter will proceed to a full hearing.

	The second point which he takes, again which we think ought to be ventilated at the full appeal hearing, relates to the distinction between the personal liability of, in this case Mr Kaye, as employer, as opposed to his role as a director of an employing company.  It is not an altogether easy issue and this goes back to the first point; if it is to be determined at a preliminary hearing, it is arguable that it requires proper notice to the parties.

	His third and fourth points are allegations of perversity in the Tribunal decision.  We have considered them and reject them.  Therefore the appeal will proceed on the first two points which we have identified only.  For the purpose of the full appeal hearing, the case will be listed for half  a day, category C, there will be an exchange of skeleton arguments between the parties and copies lodged with this Tribunal not less than 14 days 
before the date fixed for the full hearing.