PFS MERCHANDISE LTD MR ANDREW FAIRBRASS MR MICHAEL JOHN LLOYD v MISS C CUNNINGHAM [2000] UKEAT 301_00_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 301_00_1705Case No Appeal No. EAT/301/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PFS MERCHANDISE LTD MR ANDREW FAIRBRASS MR MICHAEL JOHN LLOYDAPPELLANTMISS C CUNNINGHAMRESPONDENT
Before
His Honour Judge Peter Clark Ms S R Corby Mr P A L ParkerDate 17 May 2000
[1]APPEARANCES For the Appellants MR MARC JONES (Solicitor) Appearing under the Employment Law Appeal Advice Scheme JUDGE CLARK By an Originating Application presented to the Employment Tribunal on 12 July 1999 the Applicant, Miss Cunningham, brought claims for non-payment of money in lieu of notice and outstanding holiday pay following termination on 5 May 1999 of employment which commenced on 21 September 1998.[2]In an attached statement she alleged that she commenced employment with a company, Odell and Bates Ltd, as P.A. to both Directors of that company, Messrs Fairbrass and Lloyd. From November 1998 she stated that she was engaged on duties as an Accounts Manager. Her case was that in January 1999 she was informed by Mr Fairbrass that Odell and Bate were in financial difficulties and that henceforth she would be working for another company within the group, PFS Merchandise (PFS). Subsequently she received a monthly pay cheque drawn on the PFS bank account and signed by Mr Fairbrass. On 5 May 1999 she was told that she was redundant. She claimed 1 months notice pay and 7 days outstanding holiday pay.[3]By a Notice of Appearance received at the Employment Tribunal on 28 July 1999, entered on behalf of PFS, it was contended that the Applicant had at all times been employed by Odell & Bates, not by PFS. Attached to that Notice were a number of copy documents, including a letter dated 14 December 1998 from Mr Fairbrass, describing himself as Sales & Marketing Director, to the Applicant setting out the terms of her contract of employment with Odell & Bates.[4]The complaint came on for hearing before a full Employment Tribunal sitting at London (South), Chaired by Ms E C Hide, on 7 January 2000. On that occasion the Applicant appeared in person; the Respondents, then PFS, Mr Fairbrass and Mr Lloyd did not appear and were not represented.[5]By a decision with extended reasons promulgated on 24 January 2000, the Employment Tribunal held:(1) at the time of her dismissal on 5 May 2000 the Applicant was employed by PFS(2) as a monthly paid employee she was entitled to 1 months notice of termination. She did not receive any notice. Pay in lieu of a month's notice was quantified at £1,007.(3) At that date she was entitled to 7 days outstanding holiday pay, quantified at £430.78.(4) PFS was liable to pay to the Applicant the total sum of £1,437.78 in respect of pay in lieu of notice and outstanding holiday pay(5) By signing a document dated 5 May 1999 Messrs Lloyd and Fairbrass effectively agreed to be jointly and severally responsible with PFS to pay to the Applicant pay in lieu of notice and holiday pay up to a total of £1,270. That letter is before us and reads as follows:
"We the undersigned agree to pay Clare Cunningham one month's lieu of notice salary to cover the period 1 st - 31 st May 1999. In addition to this a further 1 weeks' money to be paid being holiday accrued period 1 st January to 30 th April 1999. Total £1,270.00."
[6]It is signed by Mr Fairbrass and Mr Lloyd describing themselves respectively as Sales and Marketing Director and Creative Director. That document appears on note paper headed PFS Merchandise.[7]Accordingly, the Employment Tribunal ordered Messrs Lloyd and Fairbrass personally to pay to the Applicant £1,270, in the alternative to PFS.[8]Against that decision the Respondents appealed by a Notice dated 1 March 2000. This is a preliminary held to determine whether that appeal raises any arguable point or points of law to go forward to a full appeal hearing.[9]In support of the appeal Mr Jones submits that the Employment Tribunal's finding of fact that on 5 May 1999 the Applicant was employed by PFS Merchandise Ltd was wholly unsupported by evidence. It is the Respondents case that she was at all times employed by Odell & Bates Ltd, a company now in liquidation.[10]We remind ourselves that it is not for us to retry the facts. The Respondents did not appear at the Employment Tribunal to advance their case. This appeal can only succeed on the formulation put forward by Mr Jones.[11]Thus the question for us is whether there was any evidence before the Employment Tribunal to support the disputed finding of fact. Plainly there was. Apart from the Applicant's oral evidence, she produced, within her bundle of documents put before the Employment Tribunal, a photocopy of an open cheque book for an account with the Royal Bank of Scotland, Croydon Branch in the name of PFS Merchandise Ltd. On the left is a cheque stub, in respect of cheque number 00134 dated 26/4/99. The amount is recorded as £1,016.16 and a manuscript reads: - "Clare wages" The Applicant is Clare Cunningham.[12]On 6 May 2000 Mr Fairbrass wrote to the Employment Appeal Tribunal setting out among other things a schedule of wages said to be paid to the Applicant. The net monthly salary for April 1999 was £1,016.16.[13]It follows, in our view, that there was evidence before the Employment Tribunal, both oral and documentary to support the disputed finding of fact.[14]That disposes of this appeal. However, we should also record a further submission by Mr Jones to the effect that PFS Merchandise, referred to by the Applicant, was a trading name of Odell & Bates Ltd, and that this point was made in a letter to the Employment Tribunal from the Respondents then solicitors, Beale & Co, dated 17 December 1999. It is not, as we have observed for us to decide questions of fact, but we make the following points(1) That, as appears from the cheque book, there was at all material times a limited company, PFS Merchandise Ltd, and(2) That in a document put before us today, consisting of a blank sheet of headed paper, PFS Merchandise appears as the trading name of PFS Merchandise Ltd.[15]In these circumstance we can discern no arguable point of law raised in this appeal. Consequently it must be dismissed.