MR KENNETH WOOD v (1) MR MICHAEL COLLIER (2) SOUTHSIDE NIGHTCLUB (3) AYCLIFFE LEISURE LTD [2000] UKEAT 456_00_1011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 456_00_1011Case No Appeal No. EAT/456/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR KENNETH WOODAPPELLANT(1) MR MICHAEL COLLIER (2) SOUTHSIDE NIGHTCLUB (3) AYCLIFFE LEISURE LTDRESPONDENT
Before
His Honour Judge H Wilson Mr P DawsonDate 10 November 2000
[1]APPEARANCES For the Appellant MR PETER LAST (Representative) JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the applicant against the decision of the Employment Tribunal sitting at London (South) on 10th February 2000 that the first respondent, Mr Collier was not the employer of the applicant and that the claims against him should be dismissed and that Southside Nightclub is a trading name and not a legal entity. The appeal is limited today to the finding that Mr Collier was not the employer of the applicant, a finding which Mr Last, on behalf of Mr Wood, submits was perverse.[2]The facts of the matter may shortly be stated. The appellant was employed at Southside Nightclub and claimed that his hours were reduced without warning in February 1999, which amounted to summary dismissal without notice, written reasons or wages in lieu. He worked from 15th February 1999 under a new contract until 17th April 1999 when he says he was dismissed on the orders of Mr Collier again without any warning, notice or reason.[3]The respondents make suggestions about Mr Wood having been associated in underhand dealings with Mrs Collier, who employed him, and had been involved with her in such dealings. They assert that he was never employed by Mr Collier or Aycliffe Leisure, who was the third respondents. The IT3 stated that Mr Collier was the beneficial owner of Southside Nightclub premises and licensed Aycliffe Leisure to run the Club. Mr Collier had nothing to do with Aycliffe Leisure or the running of the Club and a preliminary hearing was needed to establish what the realities were.[4]At a preliminary hearing we note that the decision was that Mr Collier should not be dismissed from the proceedings at that stage.[5]Aycliffe Leisure made a completely separate appearance, claiming that the appellant was employed by another company until February 1999 and that the new contract was with Aycliffe who took over from CWS which was the other company. They claim that the appellant was a self-employed person and therefore not an employee.[6]As I have said, the Employment Tribunal found that Mr Collier did not employ the appellant and therefore they dismissed the claims against him.[7]An application was made for a review which was refused and the appeal alleges perversity.[8]Mr Last has submitted a skeleton argument and has amplified that in his submissions to us today.[9]Mr Last submits that he has further evidence concerning the company law realities about Ledbury Promotions Ltd and Oxbridge Promotions Ltd which show that one of the witnesses before the tribunal was not telling the truth.[10]We have regard to the decision and in particular to the facts found in paragraph 4. That paragraph states that, from the evidence they heard and the document before them, the tribunal found the facts which followed in letters (A) to (G) inclusive. In particular, Mr Last's attention was drawn to the series of facts found in paragraph 4(F) and he was invited to say which of those findings were not supported by the evidence before the tribunal. The only one to which he referred was the finding concerning 'free champagne' where the tribunal said that they accepted "Mr Collier's evidence that he had an arrangement with Mr Harris, a director, that he would be provided with champagne." Mr Last complained that the reference to Mr Harris was that he was a director, and he said that the company search showed that he was not and that is part of the new evidence which he would invite this tribunal to admit.[11]In our view, the fundamental requirement that new evidence should not be reasonably or properly available is not made out. There is clear evidence in the facts found by the tribunal in paragraph 4(A) that they knew all about the various companies through whose hands the Club had been and therefore documentary evidence about those companies would have been available with reasonable diligence.[12]In any case, there is nothing in our view to support the submission that the Employment Tribunal failed to make sufficient enquiry into these matters. They have listed a series of finding of facts which we find not undermined in any way by what Mr Last has had to say. In particular, the tribunal found on the evidence that it was impossible to say that "Mr Collier was not the Applicant's employer on the facts or in law." Paragraph 6 states that:
"There was insufficient evidence that Mr Collier in fact employed and dismissed staff, regulated terms and conditions employment, directed the Applicant as to how his work should be done or carried out the acts of an employer. The evidence does not persuade us that the companies were merely a façade or a sham so as to entitle us to list the corporate veil. The claims against Mr Collier, the First Respondent, are therefore dismissed."
[13]That decision was based upon facts found by the tribunal and it is not for us to go behind such findings of fact. The findings were open to a tribunal which reasonably and properly directed itself concerning the law and accordingly this appeal on this point, were it to go further, would have no reasonable prospect of success and must be dismissed at this stage.