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Establishing the correct employer

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In determining whether the party identified in a contract of employment is, in fact, the employer, can a tribunal take note of subsequent events?

Yes, held the EAT in Dynasystems for Trade and General Consulting Ltd and Others v Moseley.

The Claimant, an electrician, applied for an electrician’s job in the security industry working in conflict zones. His contract of employment, signed a month after engagement, was with a Jordanian company, the First Respondent. That company paid his salary, but his line manager – with whom salary, payment terms and day-to-day management were agreed – was a director of the Second Respondent, a UK company. At trial for unfair and wrongful dismissal, the tribunal had to determine which of these companies (and, in fact, two other companies) was his employer.

The tribunal was concerned whether the contractual document truly reflected the state of employment, so considered other matters in line with the Supreme Court’s judgment in Autoclenz Ltd v Belcher. That consideration included events taking place years after the contract was signed.

The tribunal found the Second Respondent to be the employer. The Respondents appealed. One complaint was that the tribunal should have limited its consideration of extraneous matters to the circumstances existing at the time the contract was signed. The EAT disagreed, holding that when the parties agree in writing to X, subsequent behaviour contradictory to that written agreement may be of evidential value (albeit not conclusive) as to whether that was in fact the agreement.

Thanks to Jason Braier of Field Court Chambers for preparing this case summary.