When considering disputes as to which party is an employer, should a tribunal consider a document drawn up without the knowledge of one of the parties?
Rarely, held the EAT in Clark v HWR & others.
The Claimant, a barrister, was dismissed from her job with a Cayman Islands legal partnership, HWR, described by the tribunal as having a 'shambolic approach' to their dealings with the Claimant. Unbeknownst to the Claimant, HWR had got her a work permit for a different, locally owned firm, HB (due to Cayman law). The Claimant brought a breach of contract claim in an English employment tribunal out of time, without going through early conciliation, the Respondents disputed employing her. The tribunal dismissed the claim on several grounds, finding that the Claimant was employed by HB, not HWR.
The EAT partly upheld the Claimant's appeal, holding HWR was the employer. The contract prevailed over the work permit. The EAT reviewed authorities and gave guidance on identifying the employer:
a) when the evidence is only documentary, the issue is a question of law, but with a mix of documents and facts (i.e., most disputes), it is a mix of fact and law;
b) the starting point will be any written agreement drawn up at the start of the relationship, then checking if that truly reflects the intention of the parties;
c) if a party alleges that the documentation doesn't show the true employer, consider whether there was a change, and how it happened; and look at how the parties acted during the relationship;
d) the EAT cautioned against giving weight to documents created without one party's knowledge, which might point to one party's private intentions rather than what was agreed.
On jurisdiction, the Claimant was permitted by Article 21 of Brussels Recast to bring a claim in the UK, as three partners of HWR were domiciled here. However, the claim remained dismissed as the tribunal correctly held that it was out of time and there had been no early conciliation.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.
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