United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D S Nunn (Employment Consultant) Trans-Pennine Employment Consultants 31 Knowl Road Mirfield W. Yorkshire WF14 8DJ


 


JUDGE JOHN HICKS QC: This is a preliminary hearing in an appeal from a decision promulgated on 21 January 1998 of an Employment Tribunal sitting in Leeds. Mr Thompson, the Applicant had worked for a company which went into liquidation. He applied to the Secretary of State under section 166 of the Employment Rights Act for payments out of the National Insurance Funds to cover a number of headings, namely, a redundancy payment, notice pay, holiday entitlement and arrears of pay. The issue before the Tribunal was a simply whether Mr Thompson was an employee of the company. The Employment Tribunal held that he was not and dismissed all claims and he appeals against that decision.

The Employment Tribunal made a number of findings of facts which are relevant to the determination of whether a person is an employee or in fact is the controlling factor in the company. They took some eleven matters into account; perhaps the most significant of them was that apart from being the managing director of the company, he also owned 50.5% of the shares, the balance of the remaining shares being held by members of his family. The father who is alleged by Mr Thompson to have been the controlling force in this company was not on the board; he was not a director. He was a minority shareholder. The mother was a director but again she was a minority shareholder. One of two claims made by Mr Thompson, was that indeed it was the father who called in the liquidator and instructed him, but that of course cannot be the constitutional position. As the Tribunal found, the liquidator was appointed at a board meeting which Mr Thompson attended as the main shareholder and managing director. We have to consider whether the Employment Tribunal came to findings of fact which were reasonable for them to come to. Did they apply the correct law?

It is said that the Chairman of the Tribunal interfered with the conduct of the case by Mr Nunn appearing on behalf of Mr Thompson. He told him it was irrelevant to call the father. This is one of the main points of appeal. We take the view that the Chairman was correct in saying that the evidence of the father was irrelevant. It may well be that the father had a controlling influence over his son, but at the end of the day, when considering the objective position in relation to a claim against the Secretary of State for substantial sums of money to be paid out to Mr Thompson as an employee, one has to look at what was his constitutional position within the company. Bearing in mind that the father had no locus standi as a director or as a majority shareholder, it seems to us to be totally irrelevant when considering the position between Mr Thompson and the Secretary of State.

In our judgment, the Employment Tribunal balanced the relevant facts here. It was for them to make their findings of fact and thereafter to carry out the balancing act which is always such an important and delicate matter in cases of this sort. In all the circumstances, we can find nothing wrong with the Tribunal's findings of fact. They were all reasonable; there is no question here of perversity. We think they applied the right law and at the end of the day carried out a balancing act of the relevant factors and came to a conclusion which was reasonable. No arguable point of law arises. In those circumstances, even at this preliminary stage, we feel that we have no alternative but to dismiss this appeal.