Appeal No.	 EAT/953/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 April 2000

Before
HIS HONOUR JUDGE PETER CLARK
MRS D M PALMER
MR A D TUFFIN CBE

MR H GILMORE	APPELLANT

1) HUGH GILMORE & ASSOCIATES LTD  2) S O S FOR DTI	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Appellant neither present nor represented	
For the Respondents	Respondent neither present nor represented	

JUDGE CLARK

1	The position in this case is that this appeal came on for preliminary hearing before a Tribunal on which I sat on 11 December 1998.  We allowed the matter to proceed to a full hearing in circumstances where the Appellant had been a majority shareholder in a company by whom he claimed to be employed.  That company went into voluntary liquidation; he sought the equivalent of the relevant termination payments from the fund operated by the Secretary of State for Trade and Industry.

2	No payment was made on the basis that it was contended that he was not an employee of the company.  On his complaint to the Birmingham Employment Tribunal a Chairman sitting alone on 14 May 1998 indicated in his reasons that he would have found in the Appellant’s favour on the issue of whether or not he was an employee within the meaning of Section 230(1) of the Employment Rights Act 1996, but for the decision of the Employment Appeal Tribunal (Mummery J presiding) in Buchan and Ivey –v- Secretary of State for Employment (1997) IRLR 80.  

3	We pointed out that shortly before that hearing the decision of the court of session in Fleming –v- Secretary of State for Trade and Industry (1997) IRLR 682 and the decision of the EAT in Secretary of State for Trade and Industry –v- Bottrill (1998) IRLR 120 had thrown some doubt on the reasoning in  Buchan and Ivey.

4	We were aware that an appeal to the Court of Appeal in the case of Bottrill was due to be heard and that other cases were waiting in the pipeline for the Court of Appeal determination in that case.  In these circumstances we directed that the case should not be listed until after the court had given its judgment in Bottrill.
5	Bottrill was decided in the Court of Appeal on 12 February 1999, see (1999) IRLR 326.  The Secretary of State’s appeal against the EAT decision in that case was dismissed and the reasoning in Buchan was disapproved.  Thereafter, by letter dated 28 May 1999 the Secretary of State indicated to the Employment Appeal Tribunal that the Respondent would be conceding this appeal.  It appears that that fact was communicated to Mr Gilmore who wrote to the Registrar on 6 October 1999 suggesting that there was no need for an Appeal Tribunal hearing.  

6	The next document in our bundle, Mr Gilmore being neither present nor represented before us today, is a letter to him from the Registrar dated 1 February 2000 in which he is required to write within 14 days to indicate whether or not he is pursuing this appeal.  No response was received and on 24 February 2000 the Registrar ordered that unless confirmation in writing was received within 7 days from that date that the Appellant wished to pursue the appeal the matter would be set down for disposal for want of prosecution.

7	The matter is before us today for disposal.  It maybe that this dispute has been resolved by an agreement between the parties.  Alternatively there may have been some breakdown in communication.  We cannot be entirely sure.

8	In these circumstances, bearing in mind that this is an appeal with merit, the order which we make today is that this appeal will stand dismissed, 28 days from the date of the promulgation of this judgment, unless within that time the Appellant writes to the Registrar indicating that he wishes the appeal to proceed.