Dynasystems for Trade and General Consulting Ltd & Ors v Moseley (CONTRACT OF EMPLOYMENT)

Where the identity of an employer is disputed, the issue may be the identity of the party to an existing contract rather than whether a further contract should be implied. The tribunal must determine whether the written identification of the employer accurately reflects the parties’ actual agreement.

Conduct after formation may be evidence of that initial agreement, especially where there is an unbroken course of conduct. It is not conclusive. A tribunal is entitled to evaluate the contractual documents and all relevant facts. An appellate court may not interfere unless there is an error of law or a perverse factual conclusion.

The Claimant, an electrician, succeeded before the London (Central) Employment Tribunal in claims for unfair dismissal, wrongful dismissal and breach of contract. The written employment documentation named a Jordanian company as employer, but a letter supplied on the same day identified the United Kingdom company, Dynasystems Ltd, as his employer.

The Tribunal found that the written identification did not reflect the actual agreement. It held that Dynasystems Ltd was the employer. The Jordanian company appealed on grounds concerning implied contracts, the application of Autoclenz, perversity, and construction of an associated-company clause. The Claimant advanced a cross-appeal seeking, if necessary, a finding that a third company was the employer.

1. Appeal dismissed. The Tribunal was entitled to find that Dynasystems Ltd, rather than the Jordanian company named in the written statement, was the Claimant’s employer.
2. This was not an agency-worker case requiring the implication of a further contract between a worker and an end-user. There was admittedly one contract of employment. The question was which possible corporate entity was party to it. The authorities on necessity to imply a contract, including James v Greenwich London Borough Council, therefore had no direct application beyond general principle.
3. Applying Autoclenz Ltd v Belcher [2011] UKSC 41, the Tribunal correctly asked whether the written term identifying the employer reflected the parties’ actual agreement. Post-contractual conduct could properly be considered as evidence of the agreement made at the outset. Its weight required care, and was not conclusive, but a continuous course of conduct consistent with one understanding could be probative of the original agreement.
4. The Tribunal’s conclusion was not perverse. It was open to it to place weight on the simultaneous passport letter identifying the United Kingdom company as employer, the absence of a functioning workplace for the Jordanian company, and the fact that the United Kingdom company performed the employer’s functions throughout.
5. The associated-company clause did not undermine that conclusion. On its natural reading, it envisaged that the Claimant would perform at least some duties for the named company. The Tribunal was entitled to regard the fact that he never did so as part of the overall evidential picture. The cross-appeal had no merit and required no separate determination.

• Employment Appeal Tribunal: dismissed the appeal and upheld the finding that Dynasystems Ltd was the contracting employer.
• London (Central) Employment Tribunal: upheld the Claimant’s complaints of unfair dismissal, wrongful dismissal and breach of contract. Its reasons were promulgated on 4 January 2017.