Williams v Miller & Anor (t/a Kitchens, Kitchen Dreams And Rock Solid Kitchens) (Contract of Employment)

When the identity of an employee’s employer is disputed, the tribunal must determine the contractual position from the circumstances in which employment was offered and accepted. It should make findings about who interviewed the claimant, who offered the employment, and on whose behalf that was done.

The tribunal must also consider whether the employment relationship subsequently changed. The absence of written evidence may be relevant, but its significance depends on whether written particulars or other documents existed and why they were not produced. An alleged employer’s admission may be considered, but it cannot replace a reasoned assessment of the evidence.

The claimant brought an unfair dismissal claim against Vance Miller and Alan Ford, who operated businesses under several trading names. The Employment Tribunal found that Ford, rather than Miller or both men jointly, was the claimant’s employer, and awarded compensation against Ford.

The claimant appealed against the finding concerning Miller. She relied on evidence that Miller had interviewed her and offered her employment, and on a letter suggesting Miller’s continuing involvement in the businesses. The central issue was whether the Tribunal had properly determined the identity of the employer at the commencement of employment and whether the position later changed.

1. Appeal allowed. The question whether the claimant was employed by Miller as well as Ford was remitted to the Employment Tribunal for reconsideration.
2. The first question was who employed the claimant in July 2006. The Tribunal should have made findings about the evidence that Miller interviewed her and offered her employment, including whether he acted for himself and Ford or for Ford alone.
3. The Tribunal should also have addressed Ford’s evidence about the 2006 employment and assessed why Miller would have interviewed and offered employment if he had no interest in the relevant businesses.
4. The lack of documentary evidence could be taken into account, but its significance depended on other findings, including whether written particulars existed and why neither party produced them.
5. If the claimant was initially employed by Miller and Ford together, the Tribunal had to consider whether the position subsequently changed and, if so, how.
6. The letter written by Miller in February 2009 required careful consideration. Its use of collective language and description of Miller’s involvement called for caution before relying on Ford’s admission that he was the employer. That admission was a relevant factor, but it was not a substitute for the required reasoning.
7. Further case management, disclosure and witness-statement directions might be appropriate before the rehearing, including ensuring that Miller was personally notified.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s finding that Miller was not the claimant’s employer and remitted the issue for reconsideration.
• Employment Tribunal, Manchester: found that Ford, rather than Miller or both men jointly, employed the claimant and awarded her £9,442.30 for unfair dismissal.