Appeal No.	 EAT/63/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MR R N STRAKER

MR N GLASSBOROW	APPELLANT

SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T C LE GRICE
(Solicitor)
MacMillans & Pethybridges
4 Mount Folly
Bodmin
Cornwall PL31 2DG	

	JUDGE PETER CLARK:     The Appellant, Mr Glassborow, appeals against the decision of an Industrial Tribunal sitting at Truro on 24 October 1997 that he was not an employee of Janeff Trading Limited, which became insolvent in January 1997.  A winding-up order was made against that Company on 15 April 1997.

	The Appellant was a director and majority shareholder of the Company.  He was also a party to a written contract of employment made with the Company.  In their Extended Reasons dated 7 November 1997 the Industrial Tribunal found that in these circumstances there was no master/servant relationship, notwithstanding their finding that the contract of employment was a genuine one.

	The Respondent to the appeal is the Secretary of State for Trade and Industry, responsible for the fund out of which any redundancy payment and pay in lieu of notice would be paid to the Appellant if his claim were to succeed.

	In the PHD form completed on behalf of the Respondent, she accepts that the Notice of Appeal raises a reasonably arguable point of law.  We think that concession is properly made.  Mr le Grice has shown us a copy of the written submission dated 10 October 1997, put in by the department before the Industrial Tribunal in this case.  That submission refers to the case of Buchan & Ivy v Secretary of State for Employment [1997] IRLR 80.  Although not referred to in the Tribunal’s reasons, we think that may have influenced their approach in this case.

	The central point in Buchan is a suggestion that a director and majority shareholder of a Company can never be employed by that Company.  Such a suggestion, if we fairly read the judgment of Mummery J, in that case, has been the subject of judicial comment, first, in Fleming v Secretary of State for Trade and Industry [1997] IRLR 682, a decision of the Court of Session, and more recently in Secretary of State for Trade and Industry v Botterill EAT/516/97 Unreported, judgment handed down on 12 January 1998.

	We think in all the circumstances that this appeal ought to be allowed to proceed to a full hearing and we so direct.  Additionally, we direct that the case be listed for half a day; Category B and that there should be an exchange of skeleton arguments between the parties and copies lodged with this Tribunal, not less than 14 days before the date fixed for the full appeal hearing.