St Aubyn v. Willis

An individual is not liable for redundancy pay or breach of contract unless the evidence establishes that he was the claimant’s employer. Ownership or chairmanship of a company does not, without more, make the individual the employer. Where a claim originally names a company, an amendment substituting the individual personally requires notice and a proper opportunity to be heard before judgment is entered against him.

Mr Willis brought Employment Tribunal proceedings seeking a redundancy payment and damages for breach of contract. The claim form identified “Nick St Aubyn, Fitzroy Joinery Works Ltd”, but, read as a whole, appeared to name a company as respondent. No response was served and no respondent attended the hearing. The Employment Tribunal granted leave to amend the respondent to Mr St Aubyn trading as The Fitzroy Group and ordered him to pay £10,325.

Mr St Aubyn appealed, asserting that he had never employed Mr Willis or traded as Fitzroy Group. Fresh evidence was admitted, including company records and liquidators’ evidence indicating that Mr Willis had been employed by limited companies. The central issues were whether Mr St Aubyn was personally the employer and whether the amendment and judgment were procedurally valid.

1. Appeal allowed. The Employment Tribunal judgment dated 17 February 2009 was set aside.
2. The fresh evidence established that Mr St Aubyn had not personally employed Mr Willis and had not traded as Fitzroy Group. Mr Willis had been employed by limited companies in which Mr St Aubyn had an ownership or chairman role. Those facts did not make Mr St Aubyn the employer.
3. Because Mr Willis was not Mr St Aubyn’s direct employee, he had no entitlement to claim a redundancy payment from Mr St Aubyn personally. There was likewise no basis for a breach of contract claim against him.
4. Independently, the judgment could not stand as a matter of procedure. If the claim was to be amended from a company to Mr St Aubyn personally, he was entitled to notice of the proposed amendment and an opportunity to be heard before judgment was entered against him.
5. Leave to amend the respondent should not have been granted, and there should have been no judgment against Mr St Aubyn. The original claim against the company had not been adjudicated and remained a matter for Mr Willis to pursue, if appropriate.
6. Costs were refused. Although the Appeal Tribunal had a discretionary power to award costs for unreasonable conduct, Mr Willis had not acted unreasonably. The confusion was likely attributable to the different companies, their successive liquidations, and the circumstances of the Employment Tribunal hearing.

• Employment Tribunal: On 17 February 2009, ordered Mr St Aubyn to pay Mr Willis £10,325 after permitting amendment of the respondent.
• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Tribunal judgment, and held that the amendment and personal judgment should not have been made.