Appeal No.	 EAT/228/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 June 2000

Before
HIS HONOUR JUDGE WILCOX
MR D J JENKINS MBE
MR T C THOMAS CBE

MR GEOFFREY DARGAVEL	APPELLANT

SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR DARGAVEL IN PERSON	

HIS HONOUR JUDGE WILCOX:

1.	This is a case in which we have seen the written submissions and the extended reasons of the Tribunal and we have had the benefit of hearing clear submissions from Mr Dargavel this morning. We have considered the matter with care as we must in a situation such as this.  This is a case that turns upon whether Mr Dargavel was an employee under s.230 (1) of the Employment Rights Act 1996.  That defines an employee as: 
“An individual who has entered into or works under (or, where the employment is ceased under) a contract of employment.”
Such a contract can be either written or it can be a verbal or oral agreement.  The company that Mr Dargavel was engaged with was called Amtrel Ltd and it was an off the shelf £100 company that was the vehicle for the business that was undertaken, namely casting liquid plastics for the electronics industry. On the evidence before the Tribunal it was a manufacturing company, which did not borrow great amounts of money, and then speculatively take enormous risks.  It is clear that Mr Dargavel went into this, seeking to make a go of it, seeking to make a successful venture and giving employment through the company to a number of employees.  

2.	He explained that it failed because of a bad debt and because of the prevailing high interest rates that followed.  Now the task we have today is this is to ask ourselves as an Appeal Tribunal, whether there is any arguable point that can go to a full hearing or whether disclosed upon the face of the reasons given by the Tribunal, there was a perverse finding.  We have considered very carefully the matters that are recited in the extended reasons.  Setting what is essentially Mr Dargavel’s case; that he was paid through the PAYE system; he wholly occupied as a hands on director, working 40 –50 hours a week, he had many of the attributes of an employee. Two former employees Mrs Giddings and Mrs Gildner, gave statements that were considered by the Tribunal.  They were Office Managers and referred to the fact that the Applicant, although he had the formal title as Managing Director, he was a Working Director.  There was an employee manual telling all employees of their terms of employment.  The Chairman of the Tribunal considered matters such as the control of the business.  

3.	It seems that the Appellant, Mr Dargavel, held 98% of the equity of Amtrel Ltd. Mr Dargavel made before us and, doubtless did before the Tribunal below the point that control, where you have an off the shelf, £100 company is a far different matter from a larger company and reiterated the point that clearly was taken into account by the Tribunal below, that in the light of the Court of Appeal decision in the Secretary of State for Trade & Industry v Bottrill, that there is no rule of law that provides that a controlling shareholder cannot be an employee.  That was a case cited in the reasons of the Tribunal Chairman, who drew the inference properly, in our judgment that it is only one of the factors that are relevant.  We have considered the matters that are contained in the extended reasons.  Two things occur to us: 
1)	That all the matters within there are relevant matters.  There is nothing can be said the Tribunal below should not have taken that into consideration.  
2)	Did the Employment Tribunal Chairman properly direct himself in law?  Well it seems to us that he did correctly direct himself in law. 
3)	Is this a decision that competently having regard to the facts and that a Tribunal Chairman properly directed himself could have come to.  

4.	We have come to the conclusion that it is a decision that properly he could come to.  It does not mean to say that we would necessarily ourselves have come to the same decision but that is not the test.  We are not entitled to superimpose our view of the facts, for those of the Chairman below.  If it can be demonstrated that he was wrong in law, or that he came to a perverse finding, then of course, we could interfere in terms of referring this to a full Employment Appeal Tribunal in order that it is looked at.  Regretfully we have come to the conclusion that we cannot interfere with this decision.  We have sympathy with you but at the end of the day, it is not sympathy that you want.  We appreciate that.  Thank you for your clear submissions.  I am sorry we cannot help.