Appeal No.	 EAT/277/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 April 1998

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR A D TUFFIN CBE

SECRETARY OF STATE FOR TRADE AND INDUSTRY	APPELLANT

MR M GORDON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS JENNIFER EADY
(of Counsel)
Instructed by:
Mr Simon Barnett
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	

	JUDGE PETER CLARK:	This is an appeal by the Secretary of State against the decision of a Chairman sitting alone at the Bedford Industrial Tribunal on 26th September 1997 that the respondent to the appeal, Mr Gordon, was an employee of a company Floors Ltd, and thus entitled to termination payments out of the Fund administered by the appellant after the company became insolvent and he was dismissed by the recently appointed Administrator on 18th October 1996.

	The respondent was managing director and 94% shareholder in the company. This appeal raises two points. First, whether a majority shareholder can ever be an employee, see Buchan & Ivey [1997] IRLR 80 (Mummery J); compare and contrast the approach of the Scottish Court of Session in Fleming [1997] IRLR 682 and the subsequent judgment of the President, Morison J in Bottrill [1998] IRLR 120. Leave to appeal was granted to the Secretary of State in Bottrill and we are told by Miss Eady that that appeal is being actively pursued.

	The second point relates to the Chairman’s approach to the facts of this case. He dealt with the respondent’s position as a majority shareholder by reference to the fact that at the date of dismissal control of the business lay with the Administrator and not with the respondent. That begs the question, submits Miss Eady, as to the employment status of the respondent prior to appointment of the Administrator, some three days prior to the dismissal.

	In view of the current uncertainty as to the correct approach in law to the question of the employment status of majority shareholders, coupled with the further point raised by Miss Eady on the particular facts of this case, we think that the appeal is arguable and should proceed to a full hearing.

	We shall direct that the appeal be not listed until after the Court of Appeal has decided the case of Bottrill. The Treasury Solicitor is directed to keep the listing office advised as to the progress of the Bottrill case; if the appeal is not pursued for any reason, listing must be informed; alternatively, as soon as the Court of Appeal judgment is handed down that fact must be communicated to listing, and this appeal will then be set down for a half day hearing; Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged with this tribunal at the same time. 

	Miss Eady has made application for leave to amend the Notice of Appeal. She has indicated that she may wish to redraft the Notice of Appeal in a way not necessarily covered by the form of the amendment set out in the appellant’s PHD form. In these circumstances, I direct that a draft amended Notice of Appeal in proper form be lodged with this tribunal within 14 days of today’s date, marked for my attention. I will then consider the application at that stage. 

	There being no further directions, that concludes the matter at this stage.