United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr R Crozier (Of Counsel) Instructed by: Messrs Charles Knapper Solicitors 10 Torr Lane Hartley, Plymouth Devon PL3 5NY


 


JUDGE WILSON:

1. This has been the preliminary hearing in the appeals which the appellant wishes to bring against the decisions of the Employment Tribunal sitting at Plymouth on the 22 September 1998 and the 6 January 1999.
2. The hearing in September 1998 concerned the question of who the employer of the applicant Mr Iles, was. The Tribunal found that he was an employee of the respondent limited liability company, Deeptrade Ltd, and made an order allowing amongst other things, leave to the applicant to amend his originating application by a date there given, and if appropriate, leave to join Taxi Services Ltd as a second respondent. In the event, the applicant Mr Iles joined several other respondents and no point at any stage has been taken about that. The other applicant was a Mrs Harvey, and these two appeals have been heard together because the ground covered by them is the same and accordingly Mr Crozier agreed that we should hear both appeals together.
3. The proceedings before the Employment Tribunal appear to have been either together or one after the other, because the substantive hearings, concerning the complaints of unfair dismissal were both heard on the 6 January 1999. In both cases the Tribunal unanimously found that the applicants were unfairly dismissed by the proposed appellant, Mr P K Mitchell, and ordered him to pay sums of money to each of them. So far as Mrs Harvey was concerned, her case had been against Mr Mitchell alone in any event.
4. With regard to Mr Iles, the Tribunal concluded that the complaints against all the other respondents including Deeptrade Ltd, should be dismissed. The facts of the matter are fully set out in the decision of each case, and it is quite plain from the facts that the Tribunal formed a most unfavourable view of the proposed appellant. They found him totally lacking in credit, and they found that he had used the limited liability company, Deeptrade Ltd, as a front, because in fact he was the operator and controller of the business. In the case of Mrs Harvey, in paragraph 8 of the decision, the Tribunal said:-

"we are satisfied that Mr Mitchell ran the business; that he was responsible for the business; that Deeptrade Ltd's involvement as tenant did not extend to control of the business; that Mr Mitchell always acted as if he were the boss and owner of the business. He did not act as if he were the manager of the business, as an employee of Deeptrade Ltd – he has produced no evidence to suggest he was such an employee".

5. They go on to look at other evidence in support of that finding of fact, and in particular, they referred to the evidence of a Mr Slade who had wanted to buy the business and had seen Mr Mitchell in early July. He had been asked if he was interested in buying the business from Mr Mitchell, not from Deeptrade Ltd or as a representative of Mr Reynolds the director of Deeptrade Ltd. The Tribunal said:-

"Mr Mitchell made it clear he was the sole owner of the taxi firm, and that no one else was involved in the sale. Cash terms were suggested. Again, Mr Mitchell was presenting himself as the owner of the business".

6. Finally the Tribunal referred to the discussions between Mr Mitchell and Mrs Harvey. There was a notice which had been signed by Mr Mitchell, another indication said the Tribunal of his control of the business. The Tribunal went on to say:-.

"In her interview with Mr Mitchell on the 16 July, she was dismissed, as we find. That could only be done by somebody with authority in the business…His evidence is that he was relaying a message from Mr Reynolds. We reject that evidence as completely untrue.

We are satisfied that at all material times the applicant's employer was Mr Mitchell".

7. The Tribunal, on the facts in Mrs Harvey's case, found that her dismissal had been wholly unjustified and that the circumstances offended every principle of good Industrial Relations.
8. So far as Mr Iles is concerned, as we have already noted, there were other respondents before the Tribunal in addition to Deeptrade Ltd who had been deemed to be the Employer at the preliminary hearing to establish jurisdiction in September.
9. The reasons why the Tribunal on the 6 January 1999 dismissed the other respondents from the case are clearly set out in the third paragraph of the extended reasons and they went on in paragraph 4 to ask the fundamental question whether Mr Mitchell was the applicant's employer.
10. They found Mr Mitchell totally lacking in creditability. Notwithstanding the fact that he was disqualified from acting as a director and from having a taxi operator's licence, he was continuing to run taxi businesses. The Tribunal found that he was one of the controllers of the business in which Mr Iles worked and that he ran the business on a day to day basis and made all the decisions. They went on to recapitulate the same facts as in the case of Mrs Harvey, and we do not propose to recite those matters again.
11. In Mr Iles' case, the Tribunal found that he was suspended as of a consequence of an interview, told not to work for a month, not paid, and prevented from working or earning money for four weeks for no reason. There was no basis to suspend him, and he resigned in response to this decision of Mr Mitchell. The Tribunal found that the refusal to allow him to work amounted to a fundamental breach of contract. The applicant was therefore constructively dismissed and it was unfair. And then they went on to quantify the damages.
12. The skeleton argument submitted by Mr Crozier which he has amplified orally before us today, has several points so far as the case is concerned.
13. The first relates to the preliminary ruling issue so far as Mr Iles's case is concerned, and Mr Crozier submits, that the fact that the same Tribunal some months earlier had found that the Limited Liability Company, Deeptrade Ltd was the employer, and therefore the respondent to the application by Mr Iles, was a finding which they were bound to review of their own motion when they were hearing the facts of the case and coming to the conclusions which they did come on the 6 January 1999.
14. It seems to us that that is, if it is even a technical complaint is completely without merit. There is no injustice to any party in carrying on as the Tribunal did, and in finding as they did. We cannot see that there would be any merit in a formal declaration that they were departing from their conclusion in September, having reviewed it in the light of the evidence they heard in January, and substituting Mr Mitchell as the employer for the reasons given, and dismissing Deeptrade Ltd. They in fact did that of course, but the suggestion is made that rule 11 should have been imported by the Tribunal of its own motion. It seems to us that it was not in a position to do that having regard to the wording of Subsection (3) of that rule, but in any case as we have already said, we regard it as a point totally without merit.
15. The skeleton argument and submissions went on to deal with the employer issue. The complaint there is that the Tribunal misdirected itself in law for the reasons set out in paragraph 10 and 11 of the skeleton argument. We find that there is no merit in those submissions either. Not least because as we understand it, Mr Crozier does not contest the right of a Tribunal to pierce the corporate veil, where a limited liability company is concerned, in order to get at the factual reality of a situation. That is what this Tribunal did and they found that Mr Mitchell used Deeptrade Ltd as a front, and was in fact the operator and controller of the business. In those circumstances there does not seem to us to be any misdirection in law.
16. Thirdly, the skeleton argument turns to what it calls the fairness issue and submits that the allegations of unfairness fall into two categories, namely procedural unfairness and bias or hostility. So far as procedural unfairness is concerned, what is complained about is the fact that when Mr Mitchell arrived before the Tribunal and said that he had come unprepared and had no papers with him, he should have been granted an adjournment in order that he could prepare himself. He sets out in his affidavit lengthy matters which were rejected by the Chairman, who found that the lack of preparation was entirely his own fault. We can find no reason to criticise that decision by the Chairman. It seems to us quite plain that anybody with any common sense at all, knowing that he had been joined as a respondent, would realise that he had to produce evidence that he was not the employer, if that was his case. Certainly a man of business of many years standing would be expected to do that. In any event, any party is expected on the day of the hearing to be prepared to conduct his case. There was no acceptable reason given why Mr Mitchell was not prepared. We find no grounds to suggest that on full argument or any fuller argument there would be any possibility of success for that point either.
17. The second allegation of unfairness is of bias or hostility and Mr Crozier invites us to say that the Chairman went beyond stringency and strayed into hostility, so far as this proposed appellant is concerned. There is no doubt that he treated Mr Mitchell robustly. Had he been before us he would have received similar treatment.
18. There is no merit in any of the points raised here, and in our judgement even if there were fuller argument, there is no prospect of success for these appeals and accordingly they must be dismissed at this stage.