Hare Wines Ltd v Mrs Satwant Kaur H&W Wholesale Ltd (Dissolved)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Underhill |
| Judgment Date | 22 February 2019 |
| Neutral Citation | [2019] EWCA Civ 216 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2017/2990 |
| Date | 22 February 2019 |
[2019] EWCA Civ 216
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE CHOUDHURY
UKEAT/0131/17/JOJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President, Civil Division, Court of Appeal)
and
Lord Justice Bean
Case No: A2/2017/2990
John Crosfill (instructed by Rainer Hughes) for the Appellant
Alexander MacMillan (instructed by Meaby & Co Solicitors LLP) for the First Respondent (Claimant)
The Second Respondent did not appear and was not represented
Hearing date: 19 February 2019
Approved Judgment
The Facts
Satwant Kaur was employed from 2002 as a cashier in a wine wholesale business run, over the course of her employment by a number of different corporate entities. The common link between them was that Mr K Hare and Mr Alexander Windsor were directors and/or shareholders. By 2014 the Claimant was employed by H&W Wholesale Ltd (“H&W”) whose directors were Mr Hare and Mr Windsor.
In April 2014 Hare Wines Ltd started trading. Until 2 January 2015, Mr Hare was its sole director and shareholder.
Mrs Kaur had a strained working relationship with a colleague, Mr Chatha, who was to become a director of Hare Wines Ltd. The employment tribunal in the present case found that the difficulties were on both sides with neither of them entirely to blame, but that nevertheless there was friction and difficulty in their working relationship.
In early December 2014 it was decided that H&W would cease trading for financial reasons. Following discussions between Mr Windsor and Mr Hare, it was agreed that Hare Wines Ltd would take on the business and employees of H&W. Mr Windsor held meetings with the six or seven employees of H&W, the last of whom was Mrs Kaur. Her meeting with Mr Windsor was on 9 December 2014. Later that day Mr Windsor wrote to her as follows:
“I am sorry to inform you that due to unforeseen circumstances concerning the business, I must inform you that our business will now cease to trade. As a result we will unfortunately have to terminate your employment as from today.”
It is common ground that on 9 December 2014 there was a TUPE transfer of the business of H&W to Hare Wines Ltd as a going concern
Following early conciliation proceedings which did not result in a settlement, Mrs Kaur submitted a claim to an ET in March 2015 for redundancy pay and notice pay against both companies. Each submitted a Response. H&W Wholesale Ltd relied on the decision to cease trading and the transfer of the business to Hare Wines Ltd. Hare Wines Ltd asserted that the Claimant has never been an employee, had not spoken to Mr Hare and that it had not issued any letter of termination. The response stated:-
“Mrs S Kaur was employed by H&W Wholesale Ltd which ceased trading on 9/12/14. She was called by Mr Alex T Windsor, who was director, and they had a meeting and Mr Windsor explained to her the situation and the matter was resolved between them. Mr K S Hare was unaware how things were resolved and was under the impression that S (Mrs S Kaur) did not want to continue as she did not turn up to work like all other staff did come to work.”
Later she was given permission to amend the claim to include an allegation of automatic unfair dismissal by reason of the TUPE transfer. A hearing took place at which neither respondent company attended and a decision was given in the Claimant's favour. That was set aside by the ET on the grounds that Hare Wines Ltd had not been present (and apparently had not had notice of the hearing?) and the matter relisted before a different employment judge. That hearing took place before EJ Russell (sitting alone) on 8 September 2016. She heard evidence from the Claimant and Mr Windsor.
In her judgment EJ Russell wrote:-
“16. Both Counsel agree that at the heart of this case is a dispute as to what happened on 9 December 2014. On the Claimant's case, she was dismissed because of the Impending transfer and her contract of employment transferred pursuant to regulation 4(1). On the Respondents' case, the Claimant objected to transfer such that regulation 4(8) operated to prevent her contract from transferring and she should not be treated as having been dismissed,
17. The Claimant's evidence was that she was called into the meeting, that Mr Windsor opened it by saying that he did not know how to tell her this and proceeded to give her bad news in the form of an indication that she was dismissed as the Second Respondent did not want her. The Claimant estimated that meeting lasted 45 minutes to an hour. There was a long conversation about Mr Chatha, that he did not want her and that the Second Respondent did not want Mr Chatha to manage her.
18. By contrast, in his written statement, Mr Windsor says that he called the meeting and told the Claimant that the business was being transferred to the Second Respondent. The Claimant stated that she was not happy to be working for the Second Respondent and did not want to transfer. He stated that the Claimant explained her reason was the difficulty she had getting on with Mr Chatha and another male employee, whose name Mr Windsor could not recall, Mr Windsor stated that the Claimant also expressed concern that he would not be involved in the new company as she and he had got on well together. As the Claimant objected to transfer, her employment ended. He stated that the meeting lasted only 15 to 20 minutes.
19. It is therefore crucial for me to resolve on balance which version of events I prefer and I bear in mind that the burden of proof is on the Claimant in this case to establish the dismissal. It has not been an easy task. There is a remarkable lack of contemporaneous documentation clearly seeing out the position which the parties now adopt. I considered the credibility and reliability of each version of the meeting in turn.
…
22. There are equally a number of matters which count against both Respondents' version of events. The letter of dismissal on 9 December 2014, on a clear and unequivocal reading, makes clear that it is the First Respondent who was terminating the Claimant's employment. if the Claimant had indeed objected, the First Respondent could be expected to write to formalise the end of the employment relationship however I consider that it is significant that Mr Windsor chose to use words of termination by an employer and omitted any reference to the transfer of the business or the Claimant's supposed objection or reluctance to transfer with it. This is particularly so where the First Respondent paid the Claimant £1,474 despite its parlous financial situation.
…
24. I took into account the discrepancies between the contents of Mr Windsor's written witness statement and his oral evidence in cross-examination. The significance of the discrepancies was increased given that the written statement was only produced on the morning of the hearing. As such, any discrepancies cannot be explained by passage of time. Whilst his written statement referred to discussion about the Claimant's difficulties with Mr Chatha, in cross-examination he was adamant that only the Second Respondent was referred to and that Mr Chatha was not even discussed. In response to the Tribunal's questions, Mr Windsor was categoric that there was no discussion in the meeting of any problems between the Claimant and Mr Chatha. This discrepancy between the written and oral evidence was so significant as to undermine seriously the credibility of his evidence.
…
27. The omission of reference in both Responses to an alleged objection to transfer is not consistent with the case as now put. Mr Hare's evidence at paragraph 12 of his witness statement was that when the Claimant did not attend work on 11 December 2014, he spoke to Mr Windsor who told him that the Claimant had refused to transfer. This is not pleaded; rather what is asserted in the Response is that Mr Hare was unaware of how things had been resolved and was under the impression that she did not wish to work for them as she did not attend work. I am satisfied that if Mr Hare had been told in December 2014 that the Claimant had refused to transfer, he would have said so in the Response.
28. Nor was I impressed by the evidence of Mr Hare with regard to the chronology of Mr Chatha's appointment as a director. Whilst not decisive, or even the most weighty factor in my analysis of the credibility of the evidence, I did consider it relevant in considering the context in which the meeting on 9 December 2014 took place The transfer took place on 11 December 2014. Mr Hare's evidence was that there was no suggestion that Mr Chatha may be appointed a director until after Christmas, whereupon discussions took place and the appointment was registered on 2 January 2015. I find that inherently unlikely given the importance of such a decision, the short timescale and intervening holiday period. On balance, I infer that the decision that Mr Chatha would assume management of the Second Respondent following transfer was taken prior to the meeting with the Claimant.
29. On the balance of probabilities, I prefer the Claimant's evidence as to what was said in the meeting on 9 December 2014 to that of Mr Windsor. It is inconsistent with the Second Respondent anticipating that there would be ongoing difficulties in the relationship between the Claimant and Mr Chatha and therefore, deciding that it did not wish her contract of employment to transfer. It is for this reason that the Claimant was the only employee told that she was not wanted. The Claimant did not object to transfer. She would have been employed immediately before transfer but for the dismissal on 9 December 2014. The reason for the dismissal was the transfer. As such her contract of employment...
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