United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE N BUTTER QC: This case is listed as the preliminary hearing of an appeal by Mr Maynard against a decision of the Chairman, sitting alone, at the Industrial Tribunal at Bury St Edmunds on 14 November 1996. He sent out his Extended Reasons on 10 December 1996.

At that hearing neither party attended but made certain representations. The main point at issue was to determine whether or not the Applicant was an employee. According to paragraph 4 of the Extended Reasons, the Applicant relied on his application, a copy pay deductions working sheet and he indicated by telephone that he would not be attending at the hearing "as all the relevant information for his claim is on file". There were written submissions before the Chairman, made on behalf of the Secretary of State.

The Chairman set out the facts which were before him quite briefly. The Applicant held 99 per cent of the shares in Maynards of Chatteris, the Company, and was its Manager and Director. The Chairman went on to say that the only evidence of any contract of employment was an undated letter addressed to him, and apparently signed by him, indicating that his functions were to manage the company by taking orders from the Board of Directors and to carry out the job of a cashier.

The Chairman correctly stated that the burden of proof was on the Applicant to show that the Applicant was an employee and concluded that the Applicant had failed to discharge that burden of proof. The Chairman said specifically, and understandably in our view, that he was very sceptical of the contract of employment and he gave short reasons for that conclusion. He accepted that the Applicant was employed so far as the Inland Revenue was concerned and deductions were made in accordance with the PAYE system and also he may have made contributions to the National Insurance Fund as an employed earner. Neither of those matters the Chairman correctly stated are conclusive. He agreed with the approach adopted by the Secretary of State in the written submissions and concluded that the Applicant, on the evidence, was not an employee.

A Director of a company is an office holder but is not as such a servant of the company. He may, however, enter into a service agreement with the company and so become its servant as well as a Director. Where there is dispute or where there is doubt as to the status of the Applicant, and whether an alleged contract of service of employment is bona fide, is pre-eminently a matter for an Industrial Tribunal to determine.

We are unanimous in our view that no error of law is established on the face of it, giving rise to any reasonable prospect that an appeal might succeed. The Chairman was, in our judgment, entitled to reach the conclusion which he did.

In these circumstances and for these reasons there is no point in the appeal going forward. The appeal is accordingly dismissed.