Thorburn v Dherves & Anor

An individual may be a worker’s employer even where the worker remains technically employed by a company. The question is determined from the factual relationship and the work actually undertaken. Where a company has ceased trading and cannot pay wages, but its managing director personally asks the worker to continue working under a personal trading name and gives work-related instructions, an employment tribunal may find that the individual is personally responsible for the wages. The Employment Appeal Tribunal will not interfere with findings of fact that were open to the tribunal on the evidence before it. The possibility that additional evidence might have produced a different outcome does not establish an error of law.

The claimant was initially employed by Arpolith Direkt Ltd, of which Dr Thorburn was managing director. After the company stopped trading and ceased paying wages, she continued working at Dr Thorburn’s request during September and October 2008. She was asked to use the name DGT & Associates and prepared work in that name, but remained technically employed by the company until 17 October 2008.

The Employment Tribunal found that she was working for Dr Thorburn personally and made awards for unpaid wages, holiday pay and failure to provide written particulars. Dr Thorburn appealed, challenging the legal basis of that conclusion and seeking to rely on further evidence. The central issue was whether the tribunal had made an error of law on the material before it.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant worked for Dr Thorburn personally from 1 September to 17 October 2008 and to make the resulting money awards.
2. The fact that the claimant remained technically employed by Arpolith Direkt Ltd did not prevent her from simultaneously working for Dr Thorburn. It was legally possible for an individual to have two employers at the same time.
3. The tribunal was entitled to infer personal responsibility for the claimant’s wages from the circumstances. The company had no funds to pay her, Dr Thorburn asked her to continue working, directed her to use DGT & Associates, and instructed her to prepare work in that name. The payslips issued by the company did not alter that factual conclusion.
4. The Employment Appeal Tribunal’s task was to determine whether the tribunal had erred in law on the evidence before it. The possibility that the outcome might have differed had Dr Thorburn attended the original hearing or adduced further evidence did not demonstrate an error of law.
5. Leave to appeal to the Court of Appeal was refused. The case turned substantially on its facts and raised no suitable point of law.

• Employment Appeal Tribunal: Appeal from the decision of Employment Judge Butler sitting alone in the Birmingham Employment Tribunal on 19 June 2009. The appeal was dismissed.