The ET had been entitled to adopt the Autoclenz ‘sham’ test in determining the identity of the employer.
Mr Moseley was employed as an engineer working across the Middle East. He was recruited in the UK where he signed a contract of employment identifying a Jordanian company as his employer. He was subsequently dismissed and brought claims for unfair dismissal, wrongful dismissal and breach of contract. The ET upheld his claims in their entirety and further held that the contractual term identifying the Jordanian company as his employer was a sham: the true agreement between the parties was that his employer was the UK company, Autoclenz Ltd v Belcher [2011] I.R.L.R. 820 applied.
The Appellants conceded liability but argued that the ET had been wrong to adopt the Autoclenz approach in determining the identity of the employer/parties to a contract: ordinary principles of contract applied and the ET should have considered whether it was necessary to imply a contract between Mr Moseley and the UK company.
The EAT dismissed the appeal. The ET was entitled to adopt the Autoclenz test and the argument that the ET ought to have considered whether it was necessary to imply a contract of employment may have had traction if the issue was whether there was a contract at all between the parties. Here there was a contract and the issue was whether it was purely written or whether it had been agreed that the UK company should be the employer.
The case is a helpful reminder that tribunals are likely to adopt a ‘purposive’ approach to contracts of employment and, whilst context isn’t everything, neither is the written contract of employment.
Mr Moseley was represented by Tara O’Halloran of Old Square Chambers and Jessica Piper of Ashtons Legal. With thanks to Nicola Newbegin for her assistance.
Please click here for the ET judgment (see paras 59 – 62) and here for the EAT’s order.
Tara O’Halloran, Autoclenz, Employment, Tribunal
