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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hauxwell & Anor v. Secretary of State for Trade & Industry & Ors [2001] UKEAT 0386_01_1409 (14 September 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0386_01_1409.html Cite as: [2001] UKEAT 386_1_1409, [2001] UKEAT 0386_01_1409

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APPEARANCES

 

For the Appellant	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED


 


MR RECORDER UNDERHILL QC

1. This is the Preliminary Hearing of the Appellants' appeal against the decision of an Employment Tribunal in Newcastle holding that they were not employees of the second Respondent and so were unable to make a claim against the first Respondent, the Secretary of State for Trade and Industry, pursuant to the insolvency provisions of the Employment Rights Act 1996. There has been no appearance by the Appellants but we have had regard to their written submissions. On the basis of those we propose to allow the appeal to proceed to a full hearing. We state our reasons very shortly.
2. There has been a good deal of recent law on the question of the correct approach to be taken in cases where a director with a shareholding of 50% or more claims to be an employee. In our view it is arguable that the Employment Tribunal misdirected itself by applying the test in Buchan & Ivey v Secretary of State for Employment [1997] IRLR 80, which has been rejected by the Court of Appeal in Secretary of State for Trade and Industry v Bottrill [1999] IRLR 326 (and see now Sellars v Arenascene Ltd v Connolly [2001] IRLR 222). Buchan was the only recent case expressly mentioned by the Tribunal and it is arguable that the short reasoning in paragraph 5 of the Reasons reflects a Buchan rather than Bottrill approach. It is true that the Tribunal says that it has had regard to the other cases to which it was referred, which seem to have included Bottrill; but it is prima facie surprising that if it had really directed itself in accordance with Bottrill it did not say so.
3. The Appellants also say that the Tribunal misdirected itself by considering their positions - they are husband and wife, each with a 50% share - collectively rather than individually. We have not considered in detail whether there is an arguable point here, but the issue may overlap with that described above and it is probably preferable for the two issues to be heard together.
4. It is not clear to us what evidence, if any, beyond the parties' written submissions the Tribunal heard; but the Reasons suggest that they did hear at least some oral evidence from both the Appellants. It is unlikely however that that evidence was at all extensive and it is unlikely that it was controversial. If it is the position that the facts are common ground, and there is an issue only as to their legal effect, it would plainly be open to the Appeal Tribunal at the full hearing to reach a decision itself rather than to remit. In those circumstances it is likely to be of assistance for the Appeal Tribunal to have before it the Chairman's notes, and we so direct. It would also be of assistance for it to have a copy of the submissions made by the Secretary of State in the Tribunal, to which the Tribunal refers but which we do not have a copy. We would regard the case as suitable for Category B, with an estimate of 2 hours.