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
HIS HONOUR JUDGE RICHARDSON
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.
2.
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.
3.
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.
4.
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.”
5.
The hearing took place on 19 July 2010. Ms Williams and Mr Ford both attended in person. Mr Miller did not attend.
6.
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.
7.
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.”
8.
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.”
9.
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.
10.
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.
11.
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?
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
