Aftala Norfolk Ltd (t/a Papa John's Pizza) v Read

An Employment Tribunal must identify a legal basis before making separate companies jointly and severally liable for employment awards. Occasional work at another company’s premises does not, without more, establish that company as an employer or make it liable for dismissal-related awards.

An alleged conflict arising from a representative’s brief earlier consultation with the opposing party does not render a hearing unfair where there was no later retainer, no identified confidential information capable of giving an advantage, and no prejudice. The Employment Appeal Tribunal may substitute the only legally permissible answer where the evidence identifies the responsible employer.

The Claimant succeeded before the Employment Tribunal on claims arising from pregnancy-related dismissal, holiday pay and national minimum wage. The Tribunal made its awards jointly and severally against two separate companies operating separate pizza franchises, on the basis that the Claimant had at times worked at both premises.

Both Respondents appealed. They challenged the joint and several liability finding. They also alleged that the Claimant’s solicitor should not have continued to act after a brief free consultation with a director of the First Respondent before the response was filed.

The central issues were whether the Second Respondent had any legal liability for the awards and whether the solicitor’s continued representation made the Tribunal hearing unfair.

1. The appeal was allowed in part. The challenge based on the Claimant’s solicitor’s earlier consultation with the First Respondent’s director was dismissed. The First Respondent’s appeal against liability failed. The Second Respondent’s appeal against the joint and several awards succeeded.

2. The Tribunal was entitled to permit the solicitor to continue acting. It was contrary to justice for a representative to use undisclosable privileged or confidential material to gain an advantage. But the director identified no such material and no resulting prejudice. The solicitor had no recollection of the brief pro bono meeting, had not been instructed by the director, and the objection was raised only on the morning of the hearing despite the First Respondent’s prior knowledge that the solicitor acted for the Claimant. There was therefore no unfairness requiring the decision to be quashed.

3. The Tribunal erred in law by imposing joint and several liability without explaining how the Second Respondent incurred an obligation or why the Claimant’s work for each company could not be apportioned. The evidence pointed unequivocally to the First Respondent as employer for the dismissal, injury to feelings and agreed holiday pay: its director wrote the dismissal letter and its manager sent it. Applying Jafri v Lincoln College, [2014] EWCA Civ 449, the EAT substituted the only possible answer and directed that those sums were payable solely by the First Respondent.

4. The minimum-wage award would require an apportionment enquiry. Accordingly, no liability for that award lay against the Second Respondent.

• Employment Appeal Tribunal: Allowed the appeal in part and varied the Employment Tribunal’s joint and several awards so that dismissal-related, injury-to-feelings and holiday-pay sums were payable solely by the First Respondent.
• Employment Tribunal, Norwich: Upheld claims for pregnancy-related unfavourable treatment and dismissal, holiday pay and national minimum wage; dismissed other claims; and made awards jointly and severally against both Respondents.