N BROOKS v M PLETENI & Ors

An Employment Tribunal must not determine that an absent respondent was the claimant’s employer unless the evidence provides a logical and sufficient basis for that conclusion. Evidence that an individual was described loosely as an owner or creator of a business does not, without more, establish that they contracted as employer rather than acting through a company.

Proceeding after an amendment may be unfair where the absent respondent did not receive notice of the amended case and had no opportunity to answer it. An amendment alleging that an existing respondent was also the employer must be properly formulated and sufficiently particularised so that the respondent knows the case to meet.

The claimant, a waitress at the Wellington Club, brought Employment Tribunal proceedings for unlawful deductions from wages, sex harassment and victimisation. Nicola Brooks was originally joined only in relation to a victimisation claim.

At a preliminary hearing, the Tribunal permitted an amendment adding Ms Brooks, trading as the Wellington Club, as an alleged employer. No respondent attended the preliminary hearings or final hearing. The Tribunal found that Ms Brooks was the claimant’s employer and made awards against her.

Ms Brooks appealed after learning of the judgment. She contended that she had not received notice of the amendment or final hearing, that the amendment was defective, and that the evidence did not justify the finding that she was the employer.

1. Appeal allowed. The Tribunal’s judgments and orders, and its decision allowing the amendment, were set aside. The claim was remitted to a differently constituted Employment Tribunal for case management and a fresh final hearing.

2. The evidence relied upon did not logically justify the finding that Ms Brooks was trading as the Wellington Club or was the claimant’s employer. Statements that she was the club’s owner or that it was her creation did not establish its corporate or business structure. The evidence did not show who had entered the contract of employment. The Tribunal also treated as relevant Ms Brooks’s failure to identify another employer in a response to a claim which had not alleged that she was the employer. That was an irrelevant factor. The need for adequate reasoning was heightened because the hearing proceeded in the absence of all respondents.

3. The Tribunal was entitled initially to assume that Ms Brooks had received the original claim and the notices normally accompanying it. However, the amended proceedings had apparently been served at an outdated address. Ms Brooks therefore had no opportunity to respond to the new allegation that she was the employer. Although her failure to update her contact address contributed to the communication failure, proceeding to uphold that new allegation was unfair.

4. The amendment was also defective because it was not properly particularised. Naming an existing individual respondent again as trading as the club was inappropriate and potentially misleading. The amendment should instead have contained particulars explaining why she was alleged to be the employer. Applying British Gas Services Ltd v Basra [2015] ICR D5, an amendment must be sufficiently formulated and particularised for the respondent to know the case to answer.

5. A substituted finding that Ms Brooks was not the employer was refused. Applying Jafri v Lincoln College [2014] EWCA Civ 449, that was not the only reasonably possible outcome, particularly as the claimant had not participated in the appeal. The claimant’s consent was also necessary before the EAT could decide the issue without remission. No findings from the earlier final hearing were preserved.

• Employment Appeal Tribunal: Allowed Ms Brooks’s appeal, set aside the Employment Tribunal’s amendment decision and judgments, and remitted the claim to a differently constituted Employment Tribunal.
• Employment Tribunal: Found Ms Brooks to be the claimant’s employer and liable for unlawful deductions, sex harassment and victimisation. The judgment’s citation is not stated in the judgment.