Appeal No.	EAT/1034/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MRS M T PROSSER

MR I DAVIES	APPELLANT

SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION BY
OR ON BEHALF OF
THE APPELLANT	

	JUDGE PETER CLARK:	The position in this case is that the Appellant, Mr Davies, claimed a redundancy payment and pay in lieu of notice out of the National Insurance Fund after the company for which he worked, Corporate Textiles Ltd, became insolvent.  He was a director of and 75% shareholder in the company.

1	The Secretary of State declined to make a payment on the basis that the Appellant was not an employee of the company within the meaning of Section 230(1) of the Employment Rights Act 1996.  As a result the Appellant presented a complaint to the Employment Tribunal on 1st October 1997.  That complaint was dismissed by an Employment Tribunal sitting at Stratford on 15th January 1998.  We see from the Tribunal’s decision with extended reasons dated 29th June 1998 that the Tribunal directed themselves in accordance with the approach of the Employment Appeal Tribunal (Mr Justice Mummery presiding) in Buchan & Ivey -v- Secretary of State for Employment [1997] IRLR 80, that as a director and majority shareholder the Appellant could not also be an employee of the company as defined in Section 230(1).

2	Against that decision the Appellant appealed to the Employment Appeal Tribunal by a Notice dated 4th June 1998.  At that stage, the Employment Tribunal had promulgated the decision with summary reasons only.  The Appeal was stayed pending the outcome of the Appeal to the Court of Appeal in the case of Secretary of State for Trade & Industry -v- Botterill.  The Employment Appeal Tribunal in that case (Mr Justice Morison presiding) had declined to follow Buchan & Ivey [1998] IRLR 120.

3	On 12th February 1999 the Court of Appeal dismissed the Secretary of State’s Appeal in Botterill [1999] IRLR 326.  As a result of the Court of Appeal judgment in Botterill the Secretary of State conceded the Appellant’s entitlement to a payment in this case, among others, by a letter to the Registrar dated 5th July 1999.  In those circumstances, Mr Davies, who we see from his communications is currently residing in Florida, USA, appears not to be quite sure what to do about his Appeal.  He notes that the Respondent has conceded his claim.  However, he is not satisfied with the amount of money which the Redundancy Payments Office proposes to pay.  In particular, he wishes to claim interest on the principal amounts in respect of redundancy pay and pay in lieu of notice, because he has been kept out of his money.

4	On 8th July, he sent an e-mail to the Employment Appeal Tribunal, asking that this hearing be stayed.  That application was refused by the Registrar.  On 23rd July, he e-mailed the Employment Appeal Tribunal again, stating that he would like to withdraw his Appeal on the substantive issue of the payment but requests that the Tribunal awards him interest.  Can this be done? he asked.  It seems to us that although this is a preliminary hearing only, in the light of the concession by the Respondent as to the Appellant’s entitlement to a payment and bearing in mind the judgment of the Court of Appeal in Botterill and the fact that the Appellant was employed by the insolvent company under a written contract of service, we ought properly to allow this Appeal and we so Order.

5	That of course, does not deal with the question of what sum of money he is entitled to.  That can only be resolved by the Employment Tribunal.  In these circumstances, we further order that the case be remitted to an Employment Tribunal for a hearing on Remedies in the absence of agreement between the parties.  In so ordering, we express no view on the Appellant’s claim to be entitled to interest on the principal sums recoverable.