It is not always easy for tribunals to identify a claimant’s employer, particularly if there is little or no written documentation. In Aftala Norfolk Ltd t/a Papa John’s Pizza and Whitestone Norwich Ltd t/a Papa John’s Pizza v Read, the Employment Appeal Tribunal (EAT) held that the tribunal was wrong to find that both companies were liable for paying the claimant compensation when all the evidence indicated that Aftala Norfolk Ltd was her employer.
Basic facts
Ms Read worked at a franchise pizza business trading as Papa John’s under the name of Aftala Norfolk Ltd (the first respondent). Very occasionally she was sent to work at a second franchise pizza business which operated under the name of Whitestone Norwich Ltd (the second respondent). The franchises were separate legal entities.
Ms Read claimed that she had been dismissed because she was pregnant. She also claimed that she had not been paid holiday pay and did not receive the National Minimum Wage (NMW), among other things.
On the day before the hearing, Mr Anjum (referred to as Mr Anton in the EAT decision), who was a director and shareholder of the first respondent, told his representative, Ms Halsall, that he had consulted with the solicitor engaged by Ms Read shortly after she lodged her tribunal claim. Ms Halsall raised the matter with the tribunal as a possible conflict of interest.
Tribunal decision
The tribunal held that there was no conflict. The solicitor had talked to Mr Anjum very briefly early on in the claim but had no recollection of it. Mr Anjum had known for months who was representing Ms Read, but had waited until the last minute to inform his own representative. As the tribunal was satisfied that the solicitor had learned nothing from Mr Anjum that might have prejudiced him, it allowed the hearing to continue.
In relation to the substantive claims made by Ms Read, the tribunal was highly critical of the evidence given by Mr Anjum. For instance, although he denied that he had dismissed her because of her pregnancy, he had referred directly to her “health circumstances” in her dismissal letter, very likely a reference to the pregnancy. In addition, in the course of cross-examination, he admitted that “I did not dismiss her just because she was pregnant” (our emphasis).
The tribunal found in Ms Read’s favour and awarded her compensation totalling £12,721.06 as well as costs against the first respondent.
As it was not clear which of the franchises was her employer, the tribunal held that the award should be made against both of them. Given the lack of record keeping (which included a failure to provide contracts of employment), the tribunal said that it was not possible to give dates for the different periods of her employment by either company.
The second respondent appealed against the decision that it was jointly and severally liable for the award. The first respondent appealed against the decision that there was no conflict of interest in relation to Ms Read’s solicitor.
EAT decision
The EAT held that, as the tribunal had failed to explain precisely how the second respondent was liable or why it was not possible to apportion the time during which Ms Read had worked for each of them, that decision could not stand.
Given that the first respondent accepted that Ms Read worked for them, they had written and then sent the dismissal letter, there was only one possible answer to the question about which of the respondents was responsible for the dismissal, the subsequent injury to feelings and the agreed holiday pay. The award was therefore payable solely by the first respondent.
As for the potential conflict of interest, the EAT dismissed the appeal as there was no basis for the suggestion that the solicitor had obtained confidential information from Mr Anjum.