Appeal No.	 EAT/273/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 1998

Before
HIS HONOUR JUDGE N BUTTER QC
MRS R CHAPMAN
LORD GLADWIN OF CLEE CBE JP

MR T LINAKER	APPELLANT

SECRETARY OF STATE FOR TRADE
AND INDUSTRY & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N HART
(Solicitor)
Appearing under the
Employment Law Appeal
Advice Scheme	

	JUDGE N BUTTER QC:     This case is listed as the preliminary hearing of an appeal by Mr Linaker in respect of a decision of an Industrial Tribunal at Manchester on 31 October 1997.  The Chairman sat alone and sent out her extended reasons on 28 November 1997.

	I should say that we have been very much assisted by Mr Hart under the ELAAS scheme, who has represented Mr Linaker today, and has endeavoured to persuade us that there is a reasonably arguable ground of appeal.  If there is such a ground then, of course, this Tribunal would direct that the matter go forward to a full hearing and if there is not then it is the duty of this Tribunal, at this stage, to dismiss the appeal.

	The decision of the Chairman was that:

“(a)  ... Mr T Linaker was not an employee within the meaning of section 230(1) of the Employment Rights Act 1996 (‘the 1996 Act’) and therefore his claim against a decision of the first respondent not to pay a statutory redundancy payment from the National Insurance Fund is dismissed; and
(b)  the applicant, Mr Shepherd, was an employee within the meaning of section 230(1) of the 1996 Act.  The applicant is entitled to a redundancy payment. ...”

	The position is that Mr Shepherd attended the hearing but Mr Linaker did not.  We are told that Mr Linaker had sent a letter to the Tribunal indicating that Mr Shepherd would be representing him, but according to the way that the Chairman dealt with the matter, to be found towards the end of paragraph 1 of the extended reasons, Mr Shepherd said that Mr Linaker had told him some days ago that he intended to submit written representations.

	The Chairman goes on to say, “but I could find no such representations on the file.”

	It is accepted today that no written representations were made by Mr Linaker.  Accordingly, on the evidence which was before the Chairman she found certain specific facts proved and it is probably convenient that I refer to her findings in paragraph 2.  

“Mr J Shepherd became a director of .... the company when it was set up in early 1984.  He had previously worked for the company before it was incorporated.  He had no service agreement and there was no memorandum in writing or board minute agreeing to the employment of Mr Shepherd under section 318 of the Companies Act 1985.  The applicant, Mr Shepherd, owned 25% of the shareholding.  The applicant, Mr Linaker, owned 50% of the shareholding.  I note that the applicant, Mr Shepherd, had told the first respondent that he owned 50% of the shareholding, but he produced to me a company search which showed his shareholding to be 25%.”

	The Chairman then refers to the fact that the Company went into liquidation on 29 November 1996 and, lower down, she cites two decisions and then in paragraph 6 says specifically:

“Mr Linaker has not appeared before me, nor has he made written representations.  Examining the company search presented by Mr Shepherd it is clear that Mr Linaker has 50% of the company’s shares and in the absence of any other further information about him, I find that he was not an employee within the meaning of section 230(1) of the 1996 Act and his application is dismissed.”

	The Chairman went on to find in the following paragraph that Mr Shepherd, on the other hand, was an employee within the meaning of that section and she noted that his shareholding was 25%.

	The position as to the remaining 25% is not clear on the material which is before us today, although Mr Hart has been good enough to tell us what his understanding of the position is.

	We have spent, as Mr Hart is aware, considerable time this morning pondering over the matter because we feel a good deal of sympathy for Mr Linaker.  We cannot however, allow that sympathy to persuade us that there is a reasonably arguable ground of appeal, if, in reality, there is not.

	It is certainly possible that if Mr Linaker had appeared before the Tribunal that Tribunal might have reached a different conclusion, but that is entirely a matter of speculation.  Mr Linaker did not appear.  He did not make written representations and he did not apply for a review of the Tribunal’s decision, as he could have done, if, having seen the decision he felt that the Tribunal had, in some way, been misled in that Mr Shepherd had not made the representations that Mr Linaker had expected of him.

	Taking all matters into account we are quite unable to see that there is, in reality, here a reasonably arguable ground of appeal and in those circumstances we would do no service to Mr Linaker to direct that the appeal goes forward.

	For all these reasons we are unanimously of the opinion that the appeal fails and must be dismissed.