Appeal No.	 EAT/953/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MR J C SHRIGLEY

MR H GILMORE	APPELLANT

(1) HUGH GILMORE & ASSOCS LTD (2) SECRETARY
OF STATE FOR TRADE AND INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR SEAN GILMORE
Representative on behalf of the Appellant	

	JUDGE PETER CLARK:	This is an appeal by Mr Gilmore against a decision of a Chairman, Mr C J Goodchild, sitting alone at  the Birmingham Employment Tribunal on 14 May 1998, that he was not an employee of Hugh Gilmore and Associates Limited (the Company) and that accordingly the Secretary of State for Trade and Industry was not obliged to make the equivalent of a redundancy payment to him, the company having gone into voluntary liquidation.

	As appears from the Chairman’s extended reasons dated 9 June 1998 Mr Gilmore, an architect, formed the company, not for tax reasons, in 1993.  Initially he held 99% of the shares; his wife 1%.  In 1995 he sold 25% of the shares, and his wife transferred her one share to another architect, Mr Brierley.  Thereafter the two men ran the practice effectively as partners through the vehicle of the limited company on a 74/26 basis.

	The Chairman indicated that but for the decision of the Employment Appeal Tribunal in Buchan and Ivey v Secretary of State for Employment (1997)  IRLR 80, to which judgment the Chairman referred Mr Gilmore’s representative, his brother, a trainee solicitor, he would almost certainly have decided the case in the Applicant’s favour.  However, in the light of Buchan the Chairman felt constrained to find that as a majority shareholder Mr Gilmore could not be regarded as an employee within the meaning of Section 230(1) of the Employment Rights Act 1996.

	It is perhaps unfortunate that this very experienced Chairman’s attention was not drawn to the Court of Session decision in Fleming v Secretary of State for Trade and Industry (1997)  IRLR 682 and the Employment Appeal Tribunal decision (Morrison J, presiding) in Secretary of State for Trade and Industry v Bottrill (1998)  IRLR 120, reported in the March edition of the Industrial Relations Law Reports.

	Those cases throw considerable doubt on the apparently rigid principle emerging from Buchan that a majority shareholder can never be an employee because he cannot be dismissed.

	The present position is that this point awaits determination by the Court of Appeal. We are told today that the appeal in Bottrill is due to be heard by the Court in January 1999.  We have a number of appeals awaiting the outcome of that determination.  This case will be added to the list.  We shall allow it to proceed it a full hearing not to be listed until after the Court of Appeal has given judgment in  Bottrill.  At that stage this and other cases will be listed for hearing.

	Finally, we shall grant Mr Gilmore’s application to amend the Notice of Appeal by adding the document headed “proposed amendment to the Notice of Appeal” to the existing grounds of appeal.