Appeal No.	 EAT/1283/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 1997

Before
HIS HONOUR JUDGE N BUTTER QC
MR E HAMMOND OBE
MR T C THOMAS CBE

MR A COLLINS	APPELLANT

(1)  F COUPLAND LTD
(2)  SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR HENNEY
(Solicitor)
Appearing under the 
Employment Law Appeal
Advice Scheme	

	JUDGE N BUTTER QC:     This is a preliminary hearing of an appeal by Mr Collins in respect of a decision of the Industrial Tribunal held at Hull on 29 August 1996.  The Extended Reasons were sent out on 24 September 1996.  The unanimous decision of that Tribunal was that the Applicants, Mr and Mrs Collins, had failed to show that they were employees within the definition of Section 230 of the Employment Rights Act 1996.

	Before that Tribunal neither of the parties attended or were represented at the hearing.  They presented their cases by way of written representations which the Tribunal said were well argued.  Today, Mr Collins has had the advantage, under the ELAAS scheme, of representation by Mr Henney, to whom we are grateful for his assistance.

	The Tribunal made a crucial finding, which is not disputed, that Mr and Mrs Collins have a 50% shareholding in the relevant company and we are told today that that has been the position since 1975.  In their reasons the Tribunal referred to a number of factual matters and then went on to refer specifically to the case of Wilson v Trenton Service Station..  They made certain findings which are the subject of criticism before us today.  

	We are prepared to accept that some of the findings of fact were not substantiated by the material before the Tribunal and that the Tribunal clearly placed considerable reliance upon the case of Wilson v Trenton Service Station.

	A complaint is further made that there was an application for review, because Mr Collins wanted to adduce further evidence and the Chairman refused to grant that review, on the basis that there was no reasonable prospect of success of the application, and that the alleged evidence was not fresh in that it was available at the time of the hearing.  On that latter point the Chairman was, in our view, undoubtedly entitled to reach that conclusion and we cannot in fairness say that he erred as a matter of law, or that he reached a decision which no reasonable Tribunal could reach.

	So far as the substantive point is concerned, it is argued today that the case is distinguishable from what now must be regarded as the leading case of Buchan v Secretary of State for Employment, and Ivey v Secretary of State for Employment, a decision of the Employment Appeal Tribunal in July 1996 and now reported in 1997 IRLR 80.  In that case the former President, Mummery J, dealt extensively with the law and with the problems which arise in relation to the question of whether Company Directors are or are not employees.  He pointed out that the purpose of the relevant provisions of the Employment Protection (Consolidation) Act, and the purpose of the relevant sections there referring to the 1978 Act, is to provide for State-funded compensation to be available for employees employed by those whose businesses have failed financially.  The President indicated the principles which should be applied.

	Today, Mr Henney argues that the case is distinguishable because of the position ab initio when Mr Collins should be regarded as a former employee.  Mr Henney also says, “What would be the position if say, at one stage, somebody had held a 50% shareholding which had then reduced to say 25%, would that person be able or unable to take advantage of the relevant statutory provisions?”.  It is argued therefore that there are matters of law which should go forward to a full hearing.

	We would, however, do no service to Mr Collins or to anyone else if we were to allow the appeal to go forward on the basis simply that there were some factual errors by the Tribunal and/or that they placed undue reliance on the case of Wilson v Trenton Service Station.  In the end the question is, “Is there here a reasonably arguable point of law in the sense that the appeal carries with it not necessarily a substantial, but at least a genuine possibility of success?”.

	We do not think that we should allow the matter to go forward on the basis that arguably some other members of the Employment Appeal Tribunal might reach different decisions and lay down different principles from those of Buchan v Secretary of State for Employment and Ivy v Secretary of State.  

	Taking all matters into account, we have come to the clear conclusion that there is, in truth, here no reasonably arguable point of law and in these circumstances and for these reasons it would be of no advantage but only disadvantage to Mr Collins, for the matter to go to a full hearing.

	Accordingly it is our unanimous view that the appeal fails and must be dismissed.