Mr S Whitehead and Mrs N Whitehead v Proplas Building and Glazing Solutions Ltd: 2411788/2023 and 2411789/2023
JUDGMENT
The claimants were not employees of the respondent company, under s230 Employment Rights Act 1996. Their claims for redundancy payments are dismissed.REASONS
The hearing and proceeding in the absence of Mr Whitehead[1]This has been a remote hearing for which no objections have been received from the claimants (Mr and Mrs Whitehead) and the respondent. The form of remote hearing was a video hearing through HM Courts & Tribunal Service. A face-to-face hearing was not held because all of the issues could be decided at this hearing.[2]The hearing was listed to start at 10am. Mr Sharma joined over 10 minutes late and said that he had a technical glitch. I queried where were Mr and Mrs Whitehead and Mr Sharma said that they did not need to be here and that he would give their evidence for them. Mr Sharma was Mr and Mrs Whitehead’s representative and I informed him that I still needed to hear their evidence, particularly given that the notice of hearing stressed the importance of the Tribunal hearing their accounts. Mr Sharma informed me that he had done these hearings before and that the claimants were not needed. I insisted that he call Mr and Mrs Whitehead at the hearing, and I told him that I wanted them to attend to give evidence. He spoke to Mrs Whitehead on the telephone, and I told him to send the video link to both (if he had not sent this already). I then broke and said that I would recommence the hearing shortly.[3]When we recommenced, Mrs Whitehead was on her smart-phone. I could see and hear her clearly and she could see and hear me. She said that she was looking after her son’s daughter, but she was able to extract herself. When I asked where she was earlier, Mrs Whitehead said that she was told by Mr Sharma that she was not needed at the hearing, and that Mr Sharma could deal with everything. She said that she was prepared to give evidence now. She said that her husband was “away” but that she did not know where he was. She said that he had his mobile phone turned off and that he could not be contacted.[4]Mr Sharma said that the Tribunal would have to adjourn if I wanted to hear from Mr Whitehead. I declined to do this. A notice of hearing had been sent and this had been received, hence the attendance of the claimants’ representative. Case preparation orders had been made so Mr and Mrs Whitehead had the opportunity to prepare for their hearing and provide documents to support their claims. I rejected Mr Sharma’s contention that claimants are not required to attend their substantive or final hearings. This has no basis in the Employment Tribunal rules or process. In respect of reconvening at Mr Whitehead’s convenience, Employment Tribunal (like the rest of the public sector) have to do more work with diminishing resources. Reconvening this hearing will inevitably make other case wait longer, particularly when there is a delay in hearing multi-day hearing of 18 months or longer. There was no satisfactory explanation why Mr Whitehead could not attend his hearing. There was no guarantee that Mr Whitehead would attend a reconvened hearing and it was not suggested that his evidence would be substantially different from his wife’s evidence. He had the opportunity to attend this hearing and I determined he voluntarily absented himself. I determined that it was both in the interests of justice and within the overriding objective not to adjourn this case further, but to proceed to resolve matters today, on the basis of the information available to me. The case 2. Mr Sharma issued proceedings on behalf of Mr and Mrs Whitehead on 15 November 2023 after a short period of ACAS Early Conciliation from 13 November 2023 to 14 November 2023. They claimed redundancy payments. Mr and Mrs Whitehead were identified as directors. Mr Whitehead said that he worked for the company from 6 April 2012 to 11 September 2023 and Mrs Whitehead from 18 July 2016 to 11 September 2023. 3. By letter dated 15 January 2024 the respondent company said that it would not be contesting the claimant for redundancy pay made by the applicants. It said the “business closed down due to poor trading” which was the words used by Mr and Mrs Whitehead on the Claim Form. The letter was signed by an unidentified “Managing Director”. 4. The case was originally listed for a 2-hour hearing for 1 July 2024, and case preparation orders were made. I reviewed the case following the respondent’s letter of 15 January 2024 and informed the parties that I was concerned that if Mr and Mrs Whitehead were directors and officers of the company then this could be a device to attempt to get a payment by purporting to be an employee. I said that the Tribunal would need to examine very closely the roles of these company directors and their employment status, so I converted the hearing to a 1-day hearing. Companies House information[5]As a matter of course, the Employment Tribunal reviews Companies House records. Both claimants/Mr and Mrs Whitehead were recorded as the only directors of the respondent company.[6]The company accounts were overdue and there was a proposal to strike off the company, which had been suspended. The documentary evidence, witness evidence and my findings of fact.[7]Before I heard evidence, Mr Sharma send me a letter signed by him and dated 24 June 2024 saying that Hersch & Co have “operated the payroll for the 2 employees [of the respondent company] for many years”. I confirmed to Mr Sharma that I had read this letter.[8]I explained again to Mrs Whitehead the purpose of my questioning before I asked her any questions. Mrs Whitehead affirmed that she would give truthful evidence. She said at first that she was not a director of the respondent company but when I said she was on company register, she accepted this. She said that she did not really know what a director was.[9]She confirmed that she and her husband were the only directors. Mrs Whitehead said 3 times that she was an employer. I sought to clarify this, and she confirmed that she was an employer. She then said that she was also an employee. I queried how she could be both employer and employee and she said that she did not know. She said that she and her husband were also the only employees.[10]When I asked her about her job, Mrs Whitehead said that she undertook secretarial work. She did not know if she had a contract of employment, and none has been produced. She said that she could not remember when she started work. She said that she might have had one but years ago. If Mrs Whitehead undertook the administrative work in this company, then I determine that she would know such basic information as whether or not she had a contract of employment and if there was one, where it would be.[11]Mrs Whitehead said her work consisted of typing quotations, payment plans and answered telephone calls. She said that she started work around 9am and worked to 4pm but often worked later. She said that she worked only from home, in a room used as an office. The company did not have any premises and she never attended site or visited clients. In the past the company had a showroom premise, but she said that was years ago and she never worked there. Mrs Whitehead was surprising vague and unhelpful about her role in the company.[12]Mrs Whitehead said that she did not have a separate work email address, she used the same as her husband. She said that the business used to employ her son and another employee but that was many years back. For the last few years only her and her husband worked in the business and that he was the only other worker.[13]Mrs Whitehead said her husband used to meet clients, price the jobs, set the terms and undertake the work. Mr Whitehead decided on the duration of jobs, his start time and finish time. He decided on his order of work and how he did the work. Her husband used to order materials and arrange the delivery or collection of any material required. He used to do the building work himself.[14]Mrs Whitehead said that the company struggled for some years and income dwindled to probably nothing by the summer of July 2023. So, if the vast bulk of any work was undertaken by Mr Whitehead then it was difficult to see what secretarial support he would need other than typing the occasional quote and that did not seem a lot, particularly as the business did not do well for so long according to Mrs Whitehead. I cannot not see how this business could sustain a secretary for the hours contended by Mrs Whitehead, so I do not believe her account.[15]I asked Mrs Whitehead about the other employment the Company Register identified that she did, but she was vague and said that she could not remember the jobs she did and when she was employed fort these. This was unconvincing and undermined her credibility further.[16]So far as the redundancy situation was concerned, Mrs Whitehead said that this was never discussed. Mrs Whitehead said that her husband took care of this. She undertook neither secretarial nor administrative work for the redundancy process. She said there was no administrative role around consultation because there was no consultation. There were no letters of dismissal to be typed and she did not receive any letter of dismissal. She did not type or know or cany dismissal letter for Mr Whitehead.[17]Mrs Whitehead said that she did type the company’s letter dated 15 January 2024 and her husband signed it. This letter is deliberately opaque, in that it seeks to hide that both Mr and Mrs Whitehead took the decision, on behalf of the company, not to defend the claims that they (i.e. Mr and Mrs Whitehead) made. My determination[18]Mrs Whitehead evidence was both vague and unsatisfactory. I am not persuaded that she worked for the business. There was little or no work for her to do. She could not give specifics about her work other than generalities about preparing quotes and payment plan for this failing business with “poor trading”.[19]In respect of the accountant’s letter, I suspect Mrs Whitehead was on the payroll as a device to minimise tax exposure, however, my job is not to determine the tax position but to satisfy myself whether or not Mr and Mrs Whitehead were in fact employees of the business and whether or not this was a genuine redundancy situation.[20]Mr Whitehead was in charge of the company. He made all of the decisions. Noone told him what to do, so he controlled the business totally. I regard this business as a one-man band. If there was administrative work, then I am not satisfied that Mrs Whitehead undertook it. I believe that she sought to mislead the Tribunal about her role.[21]The letter of 15 January 2024 was an attempt to deliberately mislead the Tribunal; the directors of this business sought to hide their involvement when writing to the Tribunal to acquiesce in a redundancy payment claim. Mr and Mrs Whitehead sought to gain financial benefit knowing that they were not in fact employees. They knew the redundancy payment would be paid from the public purse and that was dishonest.[22]I dismiss these claims.