United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 495_95_2407

Appeal No. EAT/495/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 July 1995

THE HONOURABLE MR JUSTICE TUCKEY

MR T C THOMAS CBE

MRS P TURNER OBE

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MRS P A WALDRON          APPELLANT

(1) PASSMONDS HOUSE LIMITED

(2) SECRETARY OF STATE FOR EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE TUCKEY: This case has been listed for Preliminary Hearing. The Appellant, Mrs Waldron, has not appeared to argue that her case should go forward for a full hearing, but we have considered her grounds of appeal.

Mrs Waldron appeals from the decision of the Manchester Industrial Tribunal who, following a hearing on 16 February 1995, concluded that she was not an employee of Passmonds House Limited and was not entitled to a redundancy payment; that no unlawful deduction from her wages had been made by that Company; and that the claim against the Secretary of State, which was the claim before the Tribunal, had not been presented within three months of the Secretary of State having refused to pay the claim.

The Company to which we have referred was in administration. The Appellant contended that she had been employed by that Company and that unlawful deductions had been made from her wages. The complaint that she made therefore was one under Section 124, the Secretary of State having refused to pay her claim under the terms of Section 122 of the Employment Protection (Consolidation) Act 1978.

In her Notice of Appeal, Mrs Waldron complains firstly that her case was heard by the Chairman sitting alone and that that was unfair. Secondly, that she did have a contract of employment and thirdly, that she had not presented her complaint within the three months statutory period because she had been told by the Administrator that she should "hold her hand" pending sale of the business.

As to the first point, the provisions of Section 128 of the 1978 Act (as amended) by various subsequent Acts, now provide that proceedings on a complaint under section 124 of this Act shall be heard by the Chairman alone, unless he decides that he should sit with two members.

So there is therefore nothing in the first of the Appellant's complaints. This was a hearing which had to take place before the Chairman alone and he proceeded to hear the case on his own.

As to the second point, the question of whether or not the Appellant was employed by this Company was investigated in some detail by the Chairman. Essentially, the question at the end of the day was one of fact for him to decide, and he decided it against the Applicant on the basis that she was a director and shareholder of this Company and any remuneration she received was in that capacity rather than as employee.

As to the complaint being out of time, that again was a question the Chairman investigated. He concluded, on the evidence he heard, that it was reasonably practicable for the Appellant to have presented her application within the three month statutory period. This also was a finding of fact.

There is nothing in any of Mrs Waldron's three points and so it follows that this appeal must be dismissed.