Mr I Shepherd v Access Jobs Ltd: 2205592/2018
JUDGMENT
The proceedings are adjourned to be heard on 25 and 26 November 2019.REASONS
[1]The Claimant did not attend today’s hearing. He had written in to the tribunal yesterday (13/8) to say that his 9 year old granddaughter had sustained serious injuries the previous day and remained in hospital (supported by medical evidence). He sought an adjournment of the proceedings.[2]Mr Lane asked, pursuant to r. 47, that the tribunal should hear the claim and dismiss it in the Claimant’s absence.[3]Mr Lane also informed the tribunal that the Respondent had been dissolved and removed from the Companies House register on 25 June 2019. There had been no prior application for the proceedings to be dismissed on that basis, and Mr Lane fairly provided a copy of an email from the Claimant dated 2 August 2019 in which he wrote “I have had notice from the Bankruptcy and Companies Court and the[y] have agreed to restore Access Jobs Ltd. I have spoken to them today and it will hopefully be done before the 09-08-19”. Mr Lane stated that his latest information is that the Respondent has not been restored to the register.[4]I read the witness statements provided for today’s hearing, together with the key document, an email of 31/3/17 containing headline offer terms, sent by the Respondent to the Claimant. Having done so, I concluded that there were critical issues of fact, on the face of the ET1 and ET3 and the witness statements, which could only be determined on hearing oral evidence.[5]I note in passing that the Claimant had not provided a witness statement in his own name (he did serve two statements from other witnesses) – though that is not a matter which the Respondent has raised with him. If there is any hearing of this case in the future, in order for him to give evidence to the tribunal at such a hearing, he will need to have served on the Respondent a witness statement in his own name in good time before that hearing, explaining why he had not done so as previously directed. It will be for the tribunal in due course to decide whether the Claimant should be allowed to give evidence (if that is his intention), but he will very likely not be allowed to do so if he has not provided a statement to the Respondent in advance.[6]In the circumstances, I decided that, in accordance with the overriding objective, I should adjourn these proceedings, which are re-listed as above. My reasons, in brief, are:-a. Although it appears that the Claimant’s injured granddaughter is in the care of her mother and the Claimant has not given further detail as to whether/why his personal presence or assistance is required, the Respondent accepted that it was natural that not surprising that the Claimant would feel unable to attend today’s hearing in the circumstances.b. Given the issues of contested factual evidence, I could not fairly adjudicate the substantive issues in the case in the absence of the Claimant and his witnesses.c. There seems to be some uncertainty about the legal status, as at today’s date or ongoing, of the Respondent, which again I was not in a position confidently to resolve today.[7]However – and I emphasise the importance of this – the issue of whether the Respondent continues to exist as a legal person, and if so whether as an insolvent company, and if so whether the Claimant needs the leave of the High Court to continue proceedings against it, needs to be addressed by the parties in advance of that hearing. Unless the Claimant is entitled in law to continue these tribunal proceedings against the Respondent, they will likely be dismissed (although there might possibly be grounds for a further adjournment).[1]This is a case which had been case managed on several occasions and had been adjourned previously, most recently on 14 August 2019 at the request of the claimant, whose granddaughter had been in a riding accident.[2]The claimant sent an email at 9.45 am this morning to inform the tribunal he would not be attending today’s hearing due to illness. The respondent confirmed that the claimant had informed Simon Crick on Wednesday 20 November that he would not be attending the hearing. Evidence of this was produced to the tribunal. The claimant was not present to explain why he had notified the tribunal several days after notifying the respondent.[3]In the claimant’s email, he requests that the tribunal either adjourns the hearing or that it proceeds in his absence. Having considered all the information before me and the representations on behalf of the respondent, I decided that the hearing would go ahead in the claimant’s absence. - 1 -[4]In the absence of the claimant, I considered his claims on the basis of the evidence I had before me, including witness statements from Simon Crick and Jamie Baldwin, oral evidence from Simon Crick and a bundle of documents running to nearly 400 pages. I did not have before me any witness statement from the claimant, despite him having received an order to serve one, nor did I have the ‘evidence’ of other matters which the claimant had stated in correspondence that he intended to produce at the hearing. I used the Originating Application and points he had made in correspondence as the basis of his claim.[5]I asked the respondent’s representative if they were making a strike out application on the basis of the dissolution of the respondent and/or the claimant’s failure to attend and she confirmed that she was content for the hearing to go ahead today on the merits and that she was not pursuing the strike out application at today’s hearing.[6]I heard live evidence from Simon Crick and was able to question him. I decided to reserve my decision so that I could consider in more detail all the written evidence before me.[7]Having taken into account this evidence, I make the following Judgment. Issues[8]The claimant is claiming unpaid wages, holiday pay and notice pay. The claims arise from the work he performed for the respondent between June 2018 and April 2019. The respondent accepts that he provided services and that he has not been paid but contends that he was not an employee and that the arrangement was that he would only be entitled to be paid once the business could afford it.[9]The respondent’s representative also relies on the fact that the respondent no longer exists, having been dissolved on 25 June 2019. Facts[10]The respondent is a start-up software development business. As is common with start-ups, people invest time and money in the hope of the business succeeding and returning substantial returns on the investments but in the knowledge that many start-ups fail and the investment is lost.[11]The claimant had his own business in the truck/haulage sector, Torus Logistical Solutions Ltd. He was introduced to the directors of the respondent who were planning to develop a start-up product which would facilitate contract recruitment of HGV drivers through a technology platform. A salary of £60,000 was proposed with increases depending on the success of the business. - 2 -[12]The claimant began providing advisory services to the respondent in June 2017 while still running his own business. He is based in the North -East and the business was based in London. The claimant attended some meetings in London, participated in telephone calls, engaged in email correspondence and gave advice when requested. The parties agreed that he would not take any money until the business was profitable. It was proposed that the claimant would accrue a notional salary but payment would be made once the business had funds to do so. He was also offered share options of 1% of share capital.[13]No contract of employment was entered into although it was discussed. The decision was taken not to do this until the business was running at a profit.[14]Others involved in the development of the business were on a similar arrangement although there was one employee being paid monthly from the funds raised to start up the business. He worked full time in the business unlike the claimant.[15]I find that the claimant was not an employee of the respondent. I find that he was providing services with a view to joining the business as an employee at a future date.[16]In early 2018, the shareholders had a falling-out, which affected the prospects of the business. When the shareholders went their different ways, the claimant elected to join another company in April 2018 and he discussed with Simon Crick how he would be paid for the work he had done until then.[17]Simon Crick confirmed that the claimant should be paid for the work he had done in accordance with the agreement they had reached and suggested this might be by way of a contractor’s invoice. He confirmed that the obligation to pay him would not be affected by the claimant joining a new employer. The amount owing was calculated by the respondent to be £64,167, but it was stated that this would only be payable once the business could afford it. There was some correspondence between the claimant and Simon Crick, who then passed the matter to the Finance Director Paul Fava.[18]Paul Fava told the claimant that the agreement had been that he would only be paid once the business could afford it. He stated that this condition had not been met and no money was payable.[19]I accept that this was the arrangement between the parties, as evidenced by contemporaneous documents and the facts as I have found them.[20]In the event, the business had no revenues and therefore no profits. The company was voluntarily dissolved in June 2019. The claimant states that he has applied for the company to be restored but there is no evidence before me that this application has been made since June 2019 or that it - 3 - has been restored. I therefore accept that the respondent is not in a position to make any payments in any event.[21]The claimant alleges that Simon Crick’s new business, Connected2 Ltd, has been using assets from the respondent including code that he worked on for the benefit of the respondent. Simon Crick has confirmed that Connected2 Ltd has not used any code which was developed on behalf of the respondent.[22]The claimant has included screenshots of technology being used by Connected2 Limited which he claims is using work done by him. To the extent that the claimant is alleging that his intellectual property has been used by Connected2 Limited, the tribunal does not have jurisdiction to consider this complaint. If the claimant is relying on the images as evidence that he did perform services for the respondent, I accept this is the case and it has not been contended by the respondent that the claimant did not work for them. Determination of the issues[23]In the light of my findings regarding the relationship between the claimant and the respondent and the agreement they reached regarding financial compensation, I find that the respondent does not owe the claimant any money because the condition required to trigger payment of the notional salary was not satisfied.[24]The claimant’s claims are hereby dismissed.