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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chambers v. Secretary of State for Trade and Industry [2001] UKEAT 543_01_1909 (19 September 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/543_01_1909.html Cite as: [2001] UKEAT 543_01_1909, [2001] UKEAT 543_1_1909

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APPEARANCES

 

For the Appellant	IN PERSON


 


MR RECORDER LANGSTAFF QC:

1. This is a preliminary hearing in an appeal against a decision of the Employment Tribunal sitting at Leicester. Extended Reasons for its decision were promulgated on 27 February 2001.
2. When we initially saw the papers we did not easily see that an arguable point of law might arise. However, we have come to the conclusion that this case merits further consideration at a hearing at which the Respondent may wish to be represented. It will be of assistance to the Tribunal hearing this case if the Secretary of State were to take that course.
3. The issue which was before the Employment Tribunal was whether or not the Appellant was an employee. An employee is defined by section 230 of the Employment Rights Act 1996, as someone who has entered into or works under a contract of employment. The case of Secretary of State for Trade and Industry v Bottrill [1999] ICR 592, advises Employment Tribunals to consider whether there is or has been a genuine contract between the company and the shareholder. The reason we think that there may be an arguable point here, without in any sense predetermining it, is that there is nowhere in a terse decision that the Employment Tribunal reminds itself of the wording of section 230 which might be thought to give some emphasis to the need to examine the contractual relationship between the alleged employee and the purported employer.
4. The material before the Employment Tribunal included written submissions from both the Respondent and the Appellant. It seems plain from that material that the Appellant was, as indeed he told us, in employment with the company prior to his becoming a director in 1975.
5. The decision whether or not someone is an employee is always a matter of balance. We think it is arguable that the history of the relationship between Mr Chambers and the company might, and arguably should, have been a factor considered expressly by the Employment Tribunal. It is not obvious that it was considered by implication. If that is something which should have been put into the balance it may also be material that in that balance there was arguable an error of fact at paragraph 4(e). This we have been persuaded of by Mr Chambers' submissions. We are told by him (and it seems to us consistent with the written submissions before the Tribunal) that it was not his decision alone to liquidate the company. He tells us that that had to be a decision reached by a qualified majority vote in excess of his 65% shareholding. That would have been the information before the Employment Tribunal, given the non-attendance of the Secretary of State.
6. If the fact at paragraph 4(e) was a matter of any importance then coupled with the absence of any consideration of the contractual relationship and, in particular, its history, it could arguably have made a difference in the ultimate result. Thus remission to an Employment Tribunal for further consideration might be required.
7. We therefore, despite our initial view, think that there is here something which at least should be considered by a Tribunal at an inter-partes hearing. We think that the case is Category C. We would ask that any skeleton arguments be produced at least 14 days prior to the hearing together with photocopies of any case law to be relied upon. We estimate that the hearing will take no more than two hours.