Appeal No. UKEAT/0543/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 January 2011

Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)

MR N ST AUBYN	APPELLANT

MR I WILLIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Written Submissions	
For the Respondent	Written Submissions	

SUMMARY
Contract of employment – whether established

Fresh evidence having been admitted, it is plain that the Appellant was not the employer of the Respondent. 

HIS HONOUR JUDGE RICHARDSON 

1.	This is an appeal by Mr Nicholas St Aubyn against a judgment of the Employment Tribunal sitting at Plymouth (Employment Judge Major sitting alone) dated 17 February 2009.  By its judgment the Tribunal ordered him to pay the sum of £10,325 to Mr Ian Willis, having first given to Mr Willis leave to amend the identity of the Respondent.  This sum comprised a redundancy payment of £4,125 and £6,200 for breach of contract.

2.	By his appeal Mr St Aubyn asserts that he had never employed Mr Willis; he was therefore not liable to him for a redundancy payment or breach of contract.  He says that he was given no notice of the hearing.  He has sought and obtained leave to rely on fresh evidence for the purposes of the appeal.

3.	Neither Mr St Aubyn nor Mr Willis have attended the hearing of the appeal; both have informed the Appeal Tribunal that they do not intend to appear.  I have a skeleton argument from Mr St Aubyn.  I have emails from Mr Willis which he has asked the Appeal Tribunal to treat as his skeleton argument, and I shall do so.

4.	Mr Willis had presented a claim to the Employment Tribunal claiming a redundancy payment and also asserting that his employer had failed to make pension contributions on his behalf.  The Respondent to that claim was given as “Nick St Aubyn, Fitzroy Joinery Works Ltd”.  The address for the Respondent given was Garden Close, Plympton, Devon, PL7 5EU.

5.	It is plain that this claim form intended to name only one respondent – indeed Box 2.4 of the form, which makes provision for the naming of an additional respondent, was not completed.  When one reads the claim form as a whole it is plain that the respondent is intended to be the company: in paragraph 7 Mr Willis stated that he had “worked continuously for the same company for nearly 18 years …. I was paid no redundancy when the company ceased trading.”

6.	The hearing of Mr Willis’s claim took place on 26 January 2009.  No response had been served by any respondent.  No respondent attended.  The Employment Tribunal granted leave to amend the Respondent to “Nicholas St Aubyn trading as Fitzroy Group”.

7.	The Tribunal’s reasons were as follows.

“2.1 The claimant commenced employment with the respondent on 4th April 1995 and the employment ended on 11th July 2008 but there was a break so that the claimant accepts he had 13 years completed service and was aged 34 at termination earning in excess of the weekly limit.
2.2 The original respondent, Fitzroy Group Limited, went into administration in January 2008.  The employer then changed its name to The Fitzroy Group and started up immediately without there being any break in the claimant’s employment which continued until July 2008.  Mr N St Aubyn, trading as The Fitzroy Group, paid the claimant’s wages for that intervening period.  The entity and the employment evidently transferred to Mr St Aubyn so that there was TUPE transfer.  Indeed, the machinery eventually transferred to Mr St Aubyn’s business premises in the Midlands.
2.3 Over the course of the final months of the claimant’s employment £2,800 had been deducted from the claimant’s wages to be paid into his pension plan which has gone missing, and further the respondent should have contributed the sum of £3,400 to that plan which has not been done.
2.4 The title of the respondent is therefore amended to Mr N St Aubyn trading as The Fitzroy Group.”

8.	In due course Mr St Aubyn (who lives in Surrey, not Plympton) learned of the judgment.  By Notice of Appeal dated 25 August 2009 he appealed against the judgment.  The subsequent procedural history has been convoluted.  It is not necessary to set it out for the purpose of this judgment.  Suffice it to say that by order dated 27 July 2010 further evidence submitted by Mr St Aubyn was admitted.

9.	The evidence which Mr St Aubyn has submitted supports his case, which is that he never employed Mr Willis himself and never “traded as” Fitzroy Group.  Rather there were limited companies, Fitzroy Joinery Limited and Fitzroy Group Limited.  He owned these companies and was chairman of them.  He has produced evidence, in the form of a sale agreement made in January 2008 that the business and certain assets once owned by Fitzroy Joinery Limited were transferred not to him but to Fitzroy Group Limited.  There is evidence from liquidators that Mr Willis was indeed employed first by Fitzroy Joinery Limited and then by Fitzroy Group Limited.  Indeed the liquidators of Fitzroy Group Limited say that the Redundancy Payments Office have paid Mr Willis the redundancy due from that company.

10.	In his recent email dated 30 December 2010, which forms part of his skeleton argument, Mr Willis says –

“I would also like to say that I never at any time said that I worked for Nick St Aubyn directly, which seems to be one of the main points of Nick’s argument – I just stated that he was the chairman of the company I worked for”.

11.	In these circumstances it seems to me inevitable that the appeal must be allowed.  If Mr Willis was not the direct employee of Mr St Aubyn he was not entitled to claim a redundancy payment from him.  Nor was there any basis for making a claim of breach of contract against him.

12.	I would add that, as a matter of procedure, the judgment could not have stood.  If the claim was to be amended from a claim against a company to a claim against Mr St Aubyn personally he was entitled to know about it and to have an opportunity to be heard before judgment was granted against him.

13.	Accordingly the appeal will be allowed and the judgment dated 17 February 2009 set aside.   Leave to amend the Respondent ought not to have been granted; and there should have been no judgment against Mr St Aubyn.

14.	This means, of course, that there has still been no adjudication of the original claim made by Mr Willis against the company named by him as Respondent.  This appears from the ET1 in my papers to have been Fitzroy Joinery Limited, although I note that the Employment Judge mentions the other company in his reasons.   Whether there is any point in Mr Willis seeking to proceed further with that claim is doubtful but must in the end be a matter for him to decide.  If he wishes to proceed with that claim, he will have to write to the Employment Tribunal.  The Employment Judge will note that the company is in liquidation.

15.	In his original Notice of Appeal Mr St Aubyn sought a modest award of costs in his favour.  He has not renewed that application in his skeleton argument and he has not attended the hearing.  As a general rule the Appeal Tribunal does not award costs or expenses, but it has a discretionary power to do so where, for example, there has been unreasonable conduct in the bringing or conducting of proceedings by the other party.  I am puzzled as to what occurred at the hearing in January 2009, but I am not satisfied that Mr Willis himself conducted his proceedings unreasonably – I suspect that the Tribunal’s order was the result of misunderstanding and confusion, which easily occurs where there are limited companies with the same owner but with different names and which have successively gone into liquidation, and where a lay person is trying to explain the position to an Employment Judge who has limited papers.   At all events, costs are in my discretion and I do not think this is an appropriate case for awarding them, especially where I have dealt with the matter on paper without attendance of the parties.