PVC VENDO PLC v MS M MORANCIE [2002] UKEAT 1292_01_2604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1292_01_2604Case No Appeal No. EAT/1292/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PVC VENDO PLCAPPELLANTMS M MORANCIERESPONDENT
Before
His Honour Judge J R ReidDate 26 April 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant JUDGE J R REID QC This is the preliminary hearing of an appeal by PVC Vendo PLC against a Decision of an Employment Tribunal held at Watford on 29 August of last year. By that Decision the Tribunal held that the Applicant, Ms Morancie was dismissed unfairly, contrary to Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999 and should receive compensation in the sum of £4956.00 for that dismissal. There were certain consequential Orders that flowed from that.[2]Against that Decision, PVC Vendo PLC appeals on the basis that it was never the employer of Ms Morancie. The Notice of Appeal says this:
"The named Respondent - PVC Vendo PLC, Company Registration Number 2823498 against which a decision at para 3 above is a non trading company and has not employed any person whatsoever since the company formation in 1993."
The document is supported by a letter from a Mr Calhoun, Chairman and Company Secretary of PVC Vendo PLC which says, amongst other things:
"The business premises at 215 East Lane, Wembley, Middlesex, HAO 3NG, are the Registered Offices and place of business for more than one company. Clearly, PVC Vendo PLC cannot be considered responsible for Ms Morancie's failure to advise London North and West Region Employment Tribunal of the correct name of the company that employed her."
[3]This was in line with the ET3 which had been put in at the first instance in which the Respondent had simply said:
"The Applicant, Ms M Morancie was never employed by the Respondent - PVC Vendo plc. The questions overleaf remain unanswered for this reason."
[4]PVC Vendo PLC has now tried to bolster its position by producing its "Report of the Directors and Financial Statements for the Year Ended 30 September 2001" which was signed by Mr Calhoun on behalf of the Board on 9 April of this year which purports to show, and carries a chartered accountant's certificate as registered auditors to that effect, that PVC Vendo PLC did, indeed, have no employees during the relevant year.[5]The factual background to the matter was this: that Ms Morancie was employed by a company operating out of this address from 22 to 27 March inclusive, as a full-time Accounts Assistant. She was interviewed on 21 March by Ivan Calhoun, a Director of the Respondent, who offered her the job at the interview to start the next day.[6]She was then employed, worked on 22 nd and 23 rd . On Sunday 25 th at about 6 pm she discovered that her one year old daughter was suffering from convulsions; she was, not surprisingly, extremely frightened for the child's safety. She and her partner, the child's father, were allowed to stay in the hospital overnight when the child was admitted to hospital.[7]At 9 am on the Monday morning she telephoned, asking to speak to either Mr Ivan Calhoun or Mr Richard Denney. She was told by a colleague, Mick, that neither was available. She explained the situation. Mick said she need not worry, but she should let them know when she would be able to return; she said that she would let them know, and that she expected to be able to return on Wednesday or Thursday. At 10 am that morning she and her partner were informed that the tests carried out on the child showed nothing untoward. The hospital staff wanted the child to stay in hospital for the time being to see what had happened to her temperature and about noon, Ms Morancie and her partner were informed by the doctor that they could now take the child home. They did so. She decided she would return to work the next day.[8]When she arrived at about 9.25 am she spoke to Mr Denney, who told her that Mr Calhoun wanted a word with her. He went, returned on his own, and said Mr Calhoun had said that she could not work for him any more and when she asked why, he said it was because she had not tried to telephone. When she responded by saying what had happened and she had telephoned, she produced a letter from the hospital. Mr Denney took it to show Mr Calhoun, and then returned, gave the letter back and said that Mr Calhoun had told him that he did not have time for people who had to look after children.[9]The net result was that she left and she received a letter from Mr Denney, dated 27 March, which said she should never visit the premises again and "a cheque for any monies due will be sent by the office dealing with such on 30 March to the above address."[10]The Respondent [Appellant here] did not see fit to attend the Tribunal, despite efforts being made on the day of the hearing by the Tribunal to find out what was happening. Eventually, the clerk spoke to Mr Denney, who told the clerk at the Tribunal that as the Respondent was a non-trading company, he was not in a position to inform the Tribunal whether he or anyone else on behalf of the Respondent would be attending the hearing.[11]So the position that we have got is this: that the Applicant [Ms Morancie] was employed by a company operating out of this address. She was fired by a Mr Calhoun, a Director of the Respondent Company. The Respondent Company, when she made an application to the Tribunal naming that company as the employer, simply says "We are not the employer, we do not employ anyone. There are a variety of companies which operate from this business" but does not see fit to identify which company it is it asserts does employ Ms Morancie. Clearly, it must have known because the real persons dealing with Ms Morancie were Directors of, it appears, both companies, or at least concerned with the management of both companies.[12]The Employment Tribunal heard evidence from Ms Morancie and they said this:
"The Tribunal heard evidence from the Applicant. The Tribunal believed her evidence, finding her to be a credible and truthful witness. The Tribunal made the following findings of fact: (1) The Applicant was employed by the respondent from 22 March 2001 to 27 March 2001 inclusive. She was employed as a full-time Accounts Assistant."
There is a straight finding of fact that she was employed by PVC Vendo PLC. There is not a hint of any error of law in that finding.[13]PVC Vendo PLC may protest that the finding of fact was wrong. The Tribunal, however, heard evidence which it believed to show that Ms Morancie was employed by PVC Vendo PLC, whatever PVC Vendo PLC may now choose to say about the matter. PVC Vendo PLC saw fit not to adduce any evidence at the Employment Tribunal. It saw fit, also, not to indicate who it suggested the employer was, though its Directors must have known full well who it was, and it was certain that they had employed Ms Morancie.[14]PVC Vendo PLC has no one but itself to blame for the mess in which it thinks it has got itself. There is not a hint of an error of law in the Tribunal's Decision. On the evidence it had, it was a Decision that it was well able to come to. There is no substance in this appeal. No further time or public money should be wasted on allowing this appeal to go to a full hearing and it will be dismissed at this stage.