United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 934_95_1101

Appeal No. EAT/934/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 January 1996

HIS HONOUR JUDGE SMITH QC

MR D A C LAMBERT

MRS M E SUNDERLAND JP

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MISS ALLISON COWELL          APPELLANT

PENNY LANE WINE BAR LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R BRADLEY

(Of Counsel)

Wilson Cowie & Dillon

10 James Street

Liverpool

L17 OAP


 


JUDGE SMITH QC: We have been greatly assisted by Mr Bradley's submission. It was difficult for us to get to grips with this matter because of the defects in the Notice of Appeal which he freely accepted and that is why we have taken a little longer to look at this matter. We remind ourselves that it is a question of fact whether someone is or is not an employee. We have also reminded ourselves that we only have to be satisfied, at this stage, that it is arguable that there is a point of law here, which should be properly considered at a full hearing. We do not have to go any further. The Applicant/Appellant before us today does not have to go one step further than showing that it is reasonably arguable, that that is so. In our judgment we think this matter should, by a fairly narrow margin I may say, go to a full hearing. It is not an easy situation where you have someone who is at one and the same time a director with a half-share in a company and arguably an employee. It may be that it could be said here that the learned Chairman mis-directed himself as to the way in which such a matter should be looked at. We go no further than saying that. It may be that the real issue in such a situation is whether the alleged contract of service is a bona fide arrangement between the company and the director. The fact that the director is also a controlling shareholder is only one factor to take into account in determining that issue. It may be that it can be argued here that the Chairman put too much emphasis arguably on matters of control. It is to be noted that the Respondents did in their letter of 27 September 1994 appear to accept that the Applicant had been employed during the relevant period. That is a fact worthy of consideration. We note as well that the £554 per week was an exceptional situation as we understood what was being submitted to us today. That was one particular week when that amount of money was recovered by the Appellant. In all the circumstances we consider this is just sufficiently arguable for the matter to go forward to a full hearing.

We would have thought this matter could be dealt with by the E.A.T. within half a day. We direct that there should be amended grounds of appeal served within fourteen days.

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