Patel v Specsavers Optical Group Ltd

An employee will not ordinarily have two concurrent employers for the same employment. A separate shareholders’ agreement does not create a second contract of employment merely because it contains provisions concerning the individual’s work. The agreement must establish an obligation personally to work for the alleged employer and a wage-work bargain.

Where a tribunal’s written reasons are challenged as inconsistent with extempore reasons, the written reasons prevail unless a material discrepancy is established. An appellate amendment application must identify a properly arguable ground promptly and in the prescribed form. Delay, prejudice, prospects and the efficient conduct of proceedings are material considerations.

The claimant, a joint-venture partner in a Specsavers store, had a written service contract with Skelmersdale Visionplus Ltd (SVL). He also entered a shareholders’ agreement involving Specsavers Optical Group Ltd (SOG) and the store holding company. Following his dismissal, he brought proceedings against SOG and mistakenly named the holding company rather than SVL as a second respondent.

The Employment Tribunal held that SVL alone employed him. It refused to add or substitute SVL because he had notified ACAS only of SOG during early conciliation. The claimant appealed, alleging dual employment and error in the refusal of amendment or substitution. At the appeal hearing he also sought permission to advance a new ground concerning the Tribunal’s wider discretion under Rule 34.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that SVL, and not SOG jointly with SVL, was the claimant’s sole employer.

2. The general employment-law principle is that one employee cannot simultaneously have two employers in respect of the same employment. Authorities concerning shared vicarious liability between a general and temporary employer address a different tortious context and do not establish parallel contracts of employment.

3. The claimant’s genuine, non-sham service contract with SVL governed his employment. The shareholders’ agreement regulated the joint venture, shareholding, corporate services and profit entitlements. Its requirement that the claimant devote full-time attention to the store reinforced his obligation to SVL. It did not create a wage-work bargain or an obligation personally to perform work for SOG. SOG’s payroll, disciplinary and other services were performed for SVL as its agent or on its behalf. Control over the claimant’s employment remained with SVL’s board.

4. The Employment Tribunal was entitled to find that the claimant had told ACAS of only one proposed respondent. No material divergence between the oral and written reasons was established. The general rule, derived from The Partners of Haxby Practice v Collen [2012] UKEAT/0120/12/DM and Ministry of Justice v Blackford [2018] IRLR 688, was that written reasons prevailed. Nothing displaced it here.

5. The new appellate ground was refused. It was advanced at the full appeal hearing, was not made promptly, did not fall within the existing grounds, would cause substantial delay and prejudice, and lacked reasonable prospects in its pleaded form. The Tribunal had considered the claimant’s compliance with early conciliation when refusing substitution. The extant amendment ground therefore also failed.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s findings on sole employment and refusal to add or substitute SVL were upheld.
• Employment Tribunal, Liverpool: at a preliminary hearing on 2 July 2018, with reasons sent on 16 August 2018, held that SVL alone employed the claimant and dismissed the claims after declining to add or substitute another respondent.