United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


LORD JOHNSTON: This is a preliminary hearing of an appeal at the instance of Dr Barnett who seeks effectively a redundancy payment from the Secretary of State for Trade and Industry under the statutory insurance scheme with regard to failed companies and redundancy payments, the Employment Tribunal having ruled as a matter effectively of jurisdiction that Dr Barnett was not an employee of his company and therefore was not entitled to an order for payment of money.

Counsel appeared before us this morning under the ELAAS scheme and stated that he had given certain advice to Dr Barnett with regard to the various grounds of appeal that had been put forward and in particular that there was no stateable ground in relation to the basis upon which the Industrial Tribunal Chairman had reached the substance of his decision. With that position we agree and we are very grateful to Counsel for intervention in the case to that effect. There is high-standing authority that suggests that a majority shareholder in his own company, albeit he may be a director, cannot be an employee.

Having said that however, Counsel stated that Dr Barnett wished to proceed with what effectively was the first ground of appeal in his letter intimating the appeal on 8th April 1998, which was directed to the conduct of the hearing by the Chairman, and can be loosely but generally categorised as unfair and bias treatment. What appeared to be the suggestion was that if the hearing had been properly handled, considerably more material would have been put before the Chairman which would have influenced his decision in relation to the essential issue that was being considered.

It is always of great concern when such allegations as these are made, and in normal course it is almost a duty on the part of this tribunal to investigate the allegations to see what if anything should be done in relation to this particular point. However, there must be a limit to that, if, in the opinion of this tribunal, the essential substantive issue to the case is irresolvable in an opposite direction, notwithstanding how the Chairman behaved. Given the general law, which is binding on this tribunal from the Court of Appeal, that the issue in question, namely the status as regards employment of a director who is a majority shareholder in relation to a company has been generally settled as a matter of law, it seems to us that however substantial and clearly established the complaints might be against the conduct of the Chairman, and of course we make no finding in that respect since the matter has not been investigated, it could not bear even at a new hearing on the ultimate result of the case which would be that the application must fail. It therefore seems to us, as a matter of practicality, that to embark upon an exercise of investigation into these allegations, and indeed even if they are substantiated and a new hearing is ordered would be fruitless. Nothing at the end of the day would achieve a different result, and for these reasons we consider it our duty to refuse this appeal.