United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N VINEALL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The Appellant in this case, Mr Gorham was the Managing Director of and majority shareholder in a family company, Philip Gorham Ltd. That company went into administrative receivership on 30 January 1997. He brought a claim for redundancy pay and pay in lieu of notice and the Secretary of State responsible for the state fund which makes such payments to employees who lose their jobs as a result of their employers insolvency.

An Industrial Tribunal Chairman sitting alone at Norwich on 17 June 1997 dismissed that claim. He found, based on the Secretary of State's written submissions which he adopted but which we have not seen, that the Appellant was not an employee within the meaning of the Act.

Now Mr Gorham appeals. He is represented today by Mr Vineall of Counsel under the ELAAS pro bono scheme. In his grounds of appeal which he drafted when "in person" Mr Gorham says that he had a written contract of employment and that the Act, that is the Employment Rights Act 1996, particularly Section 230(1), makes no reference to majority shareholders not being employees.

The Chairman, in his Extended Reasons dated 20 June 1997, was a little dismissive of the Appellant's contract of employment. He placed that expression in inverted commas in his reasons. He apparently explained to Mr Gorham during the hearing that it was very difficult for a majority shareholder to be an employee within the meaning of the Act.

We think it likely that that observation by the Chairman was, at any rate in part based on the judgment of Mummery J, then President of the Employment Appeal Tribunal, in Buchan & Ivey v Secretary of State for Employment [1997] IRLR 80.

However that judgment has since been questioned by the Scottish Court of Session in Fleming v Secretary of State for Trade & Industry [1997] IRLR 682, and now in a judgment of the President, Morison J, sitting in the Employment Appeal Tribunal in the case of Secretary of State for Trade & Industry v Bottrill (EAT/516/97) which was handed down on 12 January 1998 and is as yet unreported.

In these circumstances we are satisfied that this appeal does raise an arguable point of law and should be permitted to proceed to a full hearing.

We shall give a provisional time estimate of half a day, unless this case is listed with other like cases against the same Respondent in which case further consideration may be given to the time estimate. It will be listed Category B.

There should be exchange of skeleton arguments and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing. We shall direct specifically that a copy of the Respondent's written submission to the Industrial Tribunal, which was adopted by the Chairman, be placed before the full Tribunal at the full appeal hearing.