MR MICHAEL HEMMINGS v (1) HARDSHELFCO 122 LTD (IN ADMINISTRATION) (2) HARDMAN & CO SOLICITORS [2006] UKEAT 0628_05_2001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0628_05_2001Case No Appeal No. UKEAT/0628/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR MICHAEL HEMMINGSAPPELLANT(1) HARDSHELFCO 122 LTD (IN ADMINISTRATION) (2) HARDMAN & CO SOLICITORSRESPONDENT
Before
His Honour Judge J R ReidDate 20 January 2006
[1]APPEARANCES For the Appellant Mr MICHAEL HEMMINGS (The Appellant in person) For the First Respondent No appearance or representation by or on behalf of the First Respondent For the Second Respondent MISS JOANNE WOODWARD (Of counsel) As instructed by: Messrs Horwich Farrelly Solicitors National House 36 St Ann Street Manchester M60 8HF SUMMARY Contract of Employment Appellant asserted ET was in error in holding he had been employed by R1 and not R2. On facts he believed he was entering into a contract with R2, but offer of employment was by R1. No error of law by ET. Appeal dismissed. HIS HONOUR JUDGE J R REID QC This is an appeal by Mr Hemmings against a decision, on review, of an Employment Tribunal, comprising Miss Cox, as Chairman, sitting alone, held at Shrewsbury on 7 June 2005. By that decision she reviewed a judgment given on 8 November 2004, and varied it, thereby discharging John Hardman & Co Solicitors from liability as the employer and substituting Hardshelfco 122 Ltd (in administration) as the employer and therefore as liable for the amount which had been awarded by the earlier judgment.[2]The background of the case is this: that Mr Hemmings, who has a long experience both in supervising doorstep selling and as a housing revenue officer with the local authority dealing with rent arrears, court possession and the like, saw a newspaper advertisement in The Advertiser of 11 December 2003, which was sidelined "Jupiter Legal" and it then went on, now reading down, as opposed to up the side of the advertisement, "require for January 2004 CANVASSERS and TEAM LEADERS for the Staffordshire/Cheshire areas Ex-accident Group, ex-utilities welcome Excellent rates of pay" (which are then dealt with.) "Please apply in writing, enclosing CV's or covering letter to John Hardman Solicitors, Jupiter Department." It then gives an address and an email address namely:
"Kentontl@Jupiterlegal.com"
[3]There followed from Mr Hemmings' response to that advertisement an interview at a local hotel with Mr Kenton Hackney who described himself as Claims Manager. After the interview Mr Hemmings was offered employment in a letter headed "Jupiter Legal", then giving an address which in fact was the address of John Hardman & Co Solicitors, and that offer was signed off by Mr Kenton Hackney as Claims Manager and sent in an envelope franked on the John Hardman & Co franking machine.[4]Mr Hemmings was aware at this time of the collapse of the Accident Group and, though interested in what might loosely be called claims hunting as a career, would not, as he put it to me, touch with a barge pole employment with a company with the name such as Hardshelfco 122 Ltd, which was, as he would have perceived, merely a shelf company. What attracted him was that his impression was that the advertisement was an advertisement placed by John Hardman & Co Solicitors and the employment would be with the solicitors.[5]The Tribunal found, and it was open to them to find, that in fact the offer of employment was made on behalf of Hardshelfco 122 Ltd, and that so far as Hardshelfco 122 Ltd was concerned that company was to be the employer. The subsequent events were that Hardshelfco 122 Ltd had a short and inglorious career in the ambulance chasing market. During the course of that time a number of documents were produced, which until April 2004, were, bar one, pretty neutral in terms. Payslips were marked as being from Hardshelfco and nothing else, and it was known amongst the employees of whichever organization it was that was employing them, that Hardshelfco was the funder.[6]At the end of March 2004, a draft service agreement was produced, headed "Hardshelfco 122 Ltd (t/a Jupiter Legal)". A copy of this (intended to be signed by Mr Hackney), in unsigned form was given to Mr Hemmings. He never signed it and never in fact took up the issue of the name of the employer because he intended to do that when it came to the point where he was actually going to have to get round to signing something. From the beginning of the new tax year, for the month the company survived thereafter as a trading entity, a new payslip was put out under which Hardshelfco 122 Ltd was identified as the employer. The P60 for the end of the previous year was put out describing the employer as Hardshelfco Ltd. Come the beginning of May, Mr Hemmings, together with everyone else, was dismissed as the business crumbled.[7]The Employment Tribunal, in its review, pointed out, correctly in my judgment, that the advertisement which Mr Hemmings answered was misleading because it referred to John Hardman Solicitors, Jupiter Department and the Tribunal accepted that Mr Hemmings applied for the job on the basis that he believed he was applying to work with the solicitors. The Tribunal, however, went on and heard oral evidence from Mr Hardman, who at the very least deserves considerable censure for the slap-dash way in which he allowed this organization to be set up and the lack of clarity which he allowed to exist as to the relationship between the partnership of which he was a partner, and the company of which he was a substantial shareholder. The Tribunal accepted his evidence that the project under which Hardshelfco 122 Ltd was set up, was on the basis that the work would be carried out by Hardshelfco 122 Ltd, essentially as a sub-contractor for John Hardman & Co and that the employees would be employees of Hardshelfco 122 Ltd. It was intended that the company was going to change its name to Jupiter Legal (though whether it would have been able to do that without considerable interference from the well-known unit trust group may be a matter which is open to considerable doubt).[8]The Tribunal held that Jupiter Legal was a trading name for that part of the Hardshelfco 122 Ltd's operation which brought in personal injury claims for it to conduct in its role as a sub-contractor of John Hardman & Co. It appears that it was envisaged that there might be work brought in by Jupiter Legal and then sent to other solicitors, in particular medical negligence work which John Hardman & Co Solicitors realized they didn't have the expertise to deal with.[9]The finding of the Tribunal was that Mr Hemmings was under a misconception when he believed that he was taking employment with John Hardman & Co. At paragraph 14 the Chairman wrote:
"The advertisement was misleading. For whatever reason it was not made clear to Mr Hemmings at the outset that Jupiter Legal was not John Hardman & Co but part of Hardshelfco 122 Limited." (Mr Hemmings said today that nothing at all was mentioned about who the employer was in the course of his interview. He was left with his belief from the advertisement that John Hardman & Co were to be the employer.) "
His belief that Jupiter Legal was part of John Hardman & Co was understandable at that stage. However, the reality of the situation was that he was employed by Hardshelfco 122 Limited through its trading name, Jupiter Legal. There is no evidence of an express contract of employment between Mr Hemmings and John Hardman & Co. The onus is on him to establish that this was the case. Looking at the documents, his job appointment letter states Jupiter Legal and no more."[10]The Chairman went on to deal with post-contract documents which seem to me merely reinforce the point that so far as Hardshelfco 122 Ltd and Mr Hardman were concerned it was Hardshelfco 122 Ltd which was the employer.[11]The Tribunal conclude paragraph 14 of its decision by saying:
"It is clear he was paid by the first respondent and I have seen the instructions to pay him from the account of Hardshelfco 122 Ltd. I am in no doubt that Hardshelfco 122 Ltd was his paymaster."
The Tribunal then carry on at paragraph 15:
"Essentially, once it has been shown that Jupiter Legal was a trading name of the first respondent and not John Hardman & Co. and that the claimant was employed by the first respondent then the claims against the second respondent must fail. There were clearly close links between the first and second respondents but I am satisfied that Mr Hemmings' employer was the first respondent and it should be the correct respondent under the judgment …"
It then went on to make the consequential order.[12]It seems to me that there is no error of law in that latter part of the decision. I have no doubt that Mr Hemmings believed that he was taking employment with and, being offered employment by, John Hardman & Co, but equally on the findings of fact, (with which I, as an Appellate Tribunal, cannot interfere as there was evidence on which the Tribunal could make the findings) the offer was by, and the intended employer was, Hardshelfco 122 Ltd. The position then, it seems to me, is that whatever Mr Hemmings' view, the offer he believed to come from John Hardman & Co in fact came Hardshelfco 122 Ltd and cannot have been converted into a contract with John Hardman & Co by Mr Hemmings' mistaken belief.[13]There may of course be certain circumstances in which a person allows another to represent themselves as their agent or the like but no such case was argued or explored before the Tribunal.[14]It follows, (with considerable regret because it does seem to me, that John Hardman & Co have not covered themselves with glory by this expedition into the world of ambulance chasing), the appeal must fail and the review decision of the Employment Tribunal be allowed to stand.