Ms Q Stone v The Secretary of State for Business and Trade and Brewz Bar Ltd (in creditor's voluntary liquidation): 1401911/2024
EMPLOYMENT TRIBUNALS
Case No 1401911/2024
Between
Ms Q StoneClaimantThe Secretary of State for Business and Trade and Brewz Bar Ltd (in creditor's voluntary liquidation)Respondent
Before
Employment Judge Mr P CadneyDate 4 July 2025
JUDGMENT
[1]The claimant’s claims for notice pay, unpaid wages and unpaid holiday pay are dismissed as having been presented out of time.[2]The claimant was at the date of the insolvency an employee of the second respondent within the meaning of s230 Employment Rights Act 1996. ---1---[3]The claimant had insufficient length of service to be entitled to a redundancy payment.[4]The claimant’s claims that the Secretary of State (R1) is liable to make payments to her pursuant to s166/182 Employment Rights Act 1996 is not well founded and is dismissed.
REASONS
[1]By this claim the claimant brings claims for a statutory redundancy payment, notice pay, unpaid wages, and unpaid holiday pay.[2]She asserts that she was an employed director/shareholder of R2. R2 has not entered a response and has not participated in this hearing. R2 has no funds to meet any judgment, and the only purpose of any judgment against it would be to obtain payments from the Secretary of State (R1), to whom the claimant has made claims which have been refused. She also pursues those claims against the Secretary of State (R2 “SoS”) for payments from the National Insurance Fund pursuant to s166/182 of the Employment Rights Act 1996. The SoS (R1) accepts that R2 is insolvent within the meaning of those sections but disputes liability on the basis that it asserts that the claimant was not an employee of Brewz Bar Ltd (BB) (R2).[3]There is a preliminary issue of whether some of the claimant’s claims were presented within time; which I will deal with first. Time Limits[4]The SoS contends that, with the exception of the claim for redundancy pay, that all of the other claims were submitted out of time. The basis for this is that time begins to run from the notification of the rejection of the claim by the SOS (S188(1) and (2) ERA1996), which was by a letter dated 12th March 2024,which would mean that subject to any extension due to engaging in the ACAS Early Conciliation process, that the claim should have been submitted by 11th June 2024 (or by 13th June 2024 at the latest as the claimant had clearly received the letter by 14th March 2024). In fact ACAS EC commenced on 29th July 2024 (date A) and concluded on 2nd August 2024 (date B); and as this was after the primary limitation period had expired the claimant does not get the benefit any extension of time. The claim form was submitted on 13th August 2024 and was therefore approximately two months out of time.[5]On 14th March 2024 the claimant had emailed challenging the decision and asking what further information would be needed. She emailed again on 27th March 2024 notifying the SoS that she was now represented by Ms Thomas, of UKELC and Co Ltd, a claims management company specialising in assisting directors/insolvency practitioners in relation to post-insolvency statutory claims, and again stating her belief that her claim had been incorrectly rejected. On 8th May 2024 Ms Thomas sent ---2--- through a number of further documents, together with a timeline of events. On 12th June 2024 the SoS confirmed its earlier rejection of the claim.[6]In her closing submissions Ms Thomas stated that the reason the claim was submitted out of time was that the claimant did not wish to pursue the route of making a tribunal claim unless absolutely necessary, and that both she and the claimant were convinced that the SoS had misunderstood the information being provided by the claimant, and that when they correctly understood they would accept the claim.[7]The test I have to apply is whether it was reasonably practicable for the claim to have been presented within time, and if not whether it was presented within a reasonable time thereafter. The difficulty the claimant has is that she was professionally represented from, at the latest 27th March 2024, well within the limitation period; and that even if I accepted that the process of asking the SoS to reconsider meant that it was not reasonably practicable to have submitted the claim before the second rejection, that does not explain the gap from 12th June 2024 until 13th August 2024.[8]In my judgement there was in fact no impediment making it not reasonably practicable to have presented within time, and the claimant does not in fact suggest that there was; and they were not, for the reasons give above, presented within a reasonable time thereafter in any event. It follows that the claims for notice pay, unpaid wages and unpaid holiday pay must be dismissed as having been presented out of time.[9]Statutory Redundancy Pay - That leaves, however the claim for statutory redundancy pay, which requires determination of employment status and length of service. Evidence[10]The only evidence I have heard is from the claimant Ms Qiying Stone, and I have read the witness statement of her husband Mr James Stone.
Background
[11]Companies - There are a number of separate companies involved in the events that lead to this dispute. The first was Bangerz n Brewz Ltd (Co 1/BanB) which was incorporated on 14th March 2018 and traded as a hotdog outlet. The original directors were Mr Stone and Mr Jimmy Singh Swali, who resigned on 4th October 2018, and was replaced as director on 5th October 2018 by the claimant. Mr Stone resigned as director on 4th October 2023. It entered into CVL on 25th January 2024, at which point the claimant was the sole director.[12]The second is Burgerz n Brewz Ltd (Co2/ BunB), which was incorporated on 8th March 2019. The claimant and Mr Stone were the original directors; Mr Stone again resigning on 4th October 2023, again leaving the claimant as the sole director at the point that it entered into CVL on 25th January 2024. ---3---[13]The third is Brewz Bar Ltd (Co 3 / BB/R2). It was incorporated on 16th July 2019, again with the claimant and Mr Stone as directors and joint (50/50) shareholders. Again Mr Stone resigned on 4th October 2023 leaving the claimant as the sole director and shareholder at the point it entered CVL on 1st February 2024.[14]Mr Stones’ evidence is that he resigned his directorships in October 2023 due to health issues, but that it was agreed that he would continue as an employee to assist with the business restructuring plan.[15]Employment History – The claimant’s case is that she was originally employed by Co1 / BanB from 5th October 2018. Her contract provided for full time employment for 25 hours per week. However it was agreed that she would only work during school term time and would only be paid for the hours she actually worked, with the result that she was paid some £12,500 per annum. She likens this to a teacher’s contract where the teacher is paid equally monthly amounts during the year, but is only required to work during term time. She contends that the SoS has wrongly assumed that she worked fulltime for all of the year, but only received £12,500 in total which is why it has wrongly concluded that she was paid less than the national minimum wage; whereas she was always paid at least the NMW for the hours she actually worked.[16]The claimant and Mr Stone’s evidence as to her duties are that she was in fact employed to work part time during term time in a supporting role alongside the store managers. She reported to Senior Management which consisted of the Operations Director, Customer and Compliance Director, and the Managing Director (Mr Stone) .[17]The claimant was never an employee of Co2 / BunB, which is not relevant for my purposes.[18]The claimant entered into a contract of employment with Co3 BB/ R2 on 1st October 2023. It provided for an annual salary of £25,000 for 48 hr week. Again the claimant contends that the SoS’s contention that this provided for an hourly rate below the NMW is incorrect, as in fact she was employed on the same terms and would only be paid for the hours she actually worked during school term time, and would always have been paid above the NMW.[19]TUPE – The claimant’s case is that she in fact ceased to be an employee of Co1 / BanB at some point in the financial year 2022/23 when her employment transferred form Co1 /BanB to Co3 BB /R2 as part of a TUPE transfer, on the same terms and conditions as those set out at paras 8/9 above. The new contract with Co 3 BB/R2 entered into on 1st October 2023 was necessitated by Mr Stone’s decision to resign as a director, leaving her with increased responsibility for the management of the company and an inevitably increased workload. In the course of the hearing the situation was clarified, in that her payslips show her being paid by Co1 /BanB until 31st March 2023; and thereafter by Co3 BB. It appears, therefore, that her employment changed at or about the end of the financial year, on or about 1st April ---4--- 2023. The claimant’s evidence was that Co3 BB was intended to become the overall operating company which would take over the separate businesses of BanB and BunB with the employees, contracts and legal liabilities/ obligations transferring to Co 3 BB. However she accepted that Co 1/BanB and Co2 / BunB had continued to operate as separate legal entities up and until the point at which they became insolvent. Effectively the transfer of her employment was intended to be the first stage in a process by which the undertakings being carried out by Co 1 / BanB and Co 2 /BunB would transfer to Co 3 BB. Secretary of State’s Liability[20]The liability of the Secretary of State to make any payment derives from the Employment Rights Act 1996 as set out below: i) Section 166 of the Employment Rights Act 1996 (“ERA”) provides: s166 Applications for payments.(1) Where an employee claims that his employer is liable to pay to him an employer’s payment and either— (a)that the employee has taken all reasonable steps, other than legal proceedings, to recover the payment from the employer and the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or (b)that the employer is insolvent and the whole or part of the payment remains unpaid, the employee may apply to the Secretary of State for a payment under this section. (2)In this Part “employer’s payment”, in relation to an employee, means— (a)a redundancy payment which his employer is liable to pay to him under this Part, (aa)a payment which his employer is liable to make to him under an agreement to refrain from instituting or continuing proceedings for a contravention or alleged contravention of section 135 which has effect by virtue of section 203(2)(e) or (f), or (b)a payment which his employer is, under an agreement in respect of which an order is in force under section 157, liable to make to him on the termination of his contract of employment. … ii) Section 182 of the ERA provides: 182 Employee’s rights on insolvency of employer. ---5--- If, on an application made to him in writing by an employee, the Secretary of State is satisfied that— (a)the employee’s employer has become insolvent, (b)the employee’s employment has been terminated, and (c)on the appropriate date the employee was entitled to be paid the whole or part of any debt to which this Part applies, the Secretary of State shall, subject to section 186, pay the employee out of the National Insurance Fund the amount to which, in the opinion of the Secretary of State, the employee is entitled in respect of the debt. iii) Section 184 of the ERA applies section 182 to arrears of pay; accrued holiday pay and statutory notice pay (but subject to maximum amounts). iv) For the Secretary of State to be liable the Claimant must be an employee: S. 230 of the Employment Rights Act 1996 provides “230 Employees, workers etc (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.(5) In this Act “employment”— ---6--- (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly.” Employment Status – General[21]The s230 definition distinguishes between “employed” individuals on the one hand, and self-employed individuals, or independent contractors, on the other; that is between those working under a “contract of service” and those working under a “contract for services”. However, the statute does not set down the circumstances in which an individual may be said to work under a contract of employment.[22]In the absence of any comprehensive definition of a contract of employment, courts and tribunals have developed a number of tests over the years aimed at helping them identify such a contract. It is now accepted that no single factor will be determinative of employee status and a number of factors must be looked at.[23]There are three essential elements which must be present in every contract of employment. They are frequently referred to as the ‘irreducible core’ without which a contract cannot be regarded as a contract of service, taken from MacKenna’s judgment in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433, QBD. They are:a. There must have been an obligation for the Claimant to have provided the work personally;b. There must have been mutuality of obligation;c. The Claimant must have been expressly or impliedly subjected to the control of the Respondent. Personal service[24]With regards to the first element, even if the contract contained a limited power to delegate, there may still have been the obligation present for the employee to have provided work personally, but where there was a clear express contractual term which did not impose personal obligations, that would ordinarily militate against an employment relationship unless it was a sham or had been varied (Staffordshire Sentinel-v-Potter [2004] IRLR 752). ---7--- Mutuality of obligation[25]With regards to the second element, an employer and an employee must have been under legal obligations to one another during the entire contractual period under focus. Ordinarily, the obligations will have been upon the employee to undertake work when required/asked and upon the employer to have paid for it. Casual workers ordinarily fall outside of the ambit of this principle (Carmichael-v-National Power [2000] IRLR 43). Further, where the express terms of a contract made it clear that such obligations did not exist, there cannot have been an employment relationship. Gaps between assignments were just as relevant as the assignments themselves when considering all of the circumstances (Sec of State for Justice-v-Windle [2016] EWCA Civ 459). Control[26]Finally, the employer must have had a sufficient degree of control, in terms of the general sense of authority exercised over an employee, for such a relationship to have existed. ‘Control’ in this sense was not to have been equated to the undertaking of work under close supervision.[27]If the three essential elements were present, the relationship can have been one of employment, but it is also necessary to consider all of the other surrounding circumstances to finally determine its true nature. Those circumstances can include the degree of personal financial risk, the extent to which the individual provided his/her own equipment, whether the claimant was paid holiday and/or sick pay and whether he/she paid their own tax and national insurance or whether that was achieved through PAYE. There were many different factors that could have been relevant. Sham arrangements[28]A number of cases are relevant to a consideration of situations in which a party alleges that the contractual documentation was a sham and did not reflect the reality of the parties’ relationship in law; Autoclenz Ltd v Belcher and Others [2010] IRLR 70 CA and [2011] UKSC 41; Consistent Group Ltd v Kalwak [2008] IRLR 505 CA; Firthglow Ltd (t/a Protectacoat) v Szilagyi [2009] ICR 835 CA and Snook v London and West Riding Investments Ltd [1967] 2 QB 786].[29]For the reasons set out below I have not concluded in this case that the agreement was a sham, and it is not necessary to set the authorities out in detail. Employment Status - Directors and Shareholders[30]The position of shareholders and/or directors has been considered in a number of cases. The earlier view was that controlling shareholders were not under the control ---8--- of the employer because they could block any attempt to dismiss. A director’s level of control over the business undertaking generally led to a similar conclusion (see Buchan-v-Secretary of State for Employment [1997] IRLR 80 EAT in which the Claimant was the managing director and a 50% shareholder, but was not deemed to have been an employee).[31]However, in Neufeld v Secretary of State for Business Enterprise and Regulatory Reform [2009] IRLR 475, the Court of Appeal held that there was no reason in principle why someone who is a shareholder and director of company cannot also be an employee under a contract of employment. It was held:a. Whether or not a shareholder/director is an employee is a question of fact. There are in theory two issues: whether the putative contract is genuine or a sham and secondly, where genuine, that it is a contract of employment. (para 81)b. In cases involving a sham, the task is to decide whether such document amounts to a sham. This will usually require not investigation into the circumstances of the document , but also the parties purported conduct under it. The fact that the putative employee has control over the company and the board, and was instrumental in the creation of it will be a relevant matter in the consideration of whether or not it was a sham (para 82)c. An inquiry into what the parties have done under the purported contract may show a variety of things:(i) that they did not act in accordance with the purported contract at all, which would support the conclusion that it was a sham; or(ii) that they did act in accordance with it, which will support the opposite conclusion; or(iii) that although they acted in a way consistent with a genuine service contract arrangement, what they have done suggests the making of a variation of the terms of the original purported contract; or(iv) that there came a point when the parties ceased to conduct themselves in a way consistent with the purported contract or any variation of it, which may invite the conclusion that, although the contract was originally a genuine one, it has been impliedly discharged. There may obviously also be different outcomes of any investigation into how the parties have conducted themselves under the purported contract. It will be a question of fact as to what conclusions are to be drawn from such investigation. (para 83)d. In deciding whether a valid contract of employment was in existence, consideration will have to be given to the requisite conditions for the creation of such a contract and the court or tribunal will want to be satisfied that the contract meets them. In Lee’s case the position was ostensibly clear on the documents, with the only contentious issue being in relation to the control condition of a contract of employment. In some cases there will be a formal service agreement. Failing that, there may be a minute of a board meeting or a memorandum dealing with the matter. But in many cases involving small companies, with their control being in the hands of perhaps just one or two ---9--- director/shareholders, the handling of such matters may have been dealt with informally and it may be a difficult question as to whether or not the correct inference from the facts is that the putative employee was, as claimed, truly an employee. In particular, a director of a company is the holder of an office and will not, merely by virtue of such office, be an employee: the putative employee will have to prove more than his appointment as a director. It will be relevant to consider how he has been paid. Has he been paid a salary, which points towards employment? Or merely by way of director’s fees, which points away from it? In considering what the putative employee was actually doing, it will also be relevant to consider whether he was acting merely in his capacity as a director of the company; or whether he was acting as an employee. (para 85)e. We have referred in the previous paragraph to matters which will typically be directly relevant to the inquiry whether or not (there being no question of a sham) the claimed contract amounts to a contract of employment. What we have not included as a relevant consideration for the purposes of that inquiry is the fact that the putative employee’s shareholding in the company gave him control of the company, even total control. The fact of his control will obviously form a part of the backdrop against which the assessment will be made of what has been done under the putative written or oral employment contract that is being asserted. But it will not ordinarily be of any special relevance in deciding whether or not he has a valid such contract. Nor will the fact that he will have share capital invested in the company; or that he may have made loans to it; or that he has personally guaranteed its obligations; or that his personal investment in the company will stand to prosper in line with the company’s prosperity; or that he has done any of the other things that the ‘owner’ of a business will commonly do on its behalf. These considerations are usual features of the sort of companies giving rise to the type of issue with which these appeals are concerned but they will ordinarily be irrelevant to whether or not a valid contract of employment has been created and so they can and should be ignored. They show an ‘owner’ acting qua ‘owner’, which is inevitable in such a company. However, they do not show that the ‘owner’ cannot also be an employee. (para 86)[32]In Eaton v Robert Eaton Ltd v Secretary of State for Employment [1988] IRLR 83, it was ruled that a director of a company is normally the holder of an office and not an employee. Therefore evidence is required to establish that the director was in fact employed.[33]In Fleming v Secretary of State for Trade and Industry [1997] IRLR 682, the Court of Session held that whether or not a person is an employee is a question of fact. The fact that a person is a majority shareholder is always a relevant factor and may be decisive. However the significance of the factor will depend on the circumstances and it would not be proper to lay down any hard and fast rule. In that case the Claimant was not found to have been an employee because, amongst other things, he had ---10--- personally guaranteed loans, had no written contract and had decided not to draw a salary in the hope of saving the business).[34]In Rainford-v-Dorset Aquatics Ltd EA-2020-000123-BA, UKEAT/0126/20/BA, it was further said that; “Although there was no reason in principle why a director/shareholder of a company could not also be an employee or worker, it did not necessarily follow that simply because he did work for the company and received money from it he had to be one of the three categories of individual identified in s. 230 (3) of the Act. Overall, the tribunal's conclusion that the appellant was not an employee or worker was one of fact based on relevant factors and was not perverse.”[35]That was a case involving a claimant who had been a director and a 40% shareholder who was found to have been neither an employee nor a worker. The Claimant had drawn a ‘salary’ which was subject to PAYE and NI deductions, on the advice of the company accountants.[36]In Secretary of State for Trade and Industry-v-Bottrill [1999] ICR 592, CA, (as applied in Sellars Arenascene Ltd-v-Connolly [2001] ICR 760, CA) Lord Woolf MR suggested that Tribunal’s should consider the following questions:(a) Was there a genuine contract between the business and the shareholder? One which was not a sham?;(b) If so, did the contract actually create an employment relationship? Of the various factors which had to be considered, the degree of control is important. It was not just a case of looking at who had the controlling shareholding. A Tribunal had to consider where the real control lay; what role did any other directors/shareholders actually take?[37]In Clark-v-Clark Construction Initiatives Ltd [2008] ICR 635, EAT, the list was broadened to include some of the further following factors; Whether the individual was an entrepreneur and/or had built the company up and/or would profit from its success. It was also held that there were three sets of circumstances where it may be legitimate to not give effect to what is alleged to be a binding contract of employment:(1) where the company is a sham,(2) where the contract is entered into for some ulterior purpose, such as to secure some statutory payment from the secretary of state, and(3) the parties had not conducted their relationship in accordance with the contract.[38]In Rajah v Secretary of State for Employment EAT/125/95, it was held that the relevant date for the purposes of who the secretary of state is liable to make payments out of the National Insurance fund is the date when the company became insolvent and not the position it was two, five or ten years previously. ---11--- Primary Issues[39]It follows that among the primary issues before me are:- i) Was the claimant an employee of Co 1/ BanB from 5th October 2018; ii) If so did her employment transfer under the terms of a TUPE transfer to Co3 BB/R2; and if so when; iii) If not did she cease to be an employee of Co 1 BanB at some point; and if so when; and iv) Was she an employee of Co 3 BB/R2 at the point of insolvency; and v) If so when did that employment commence.[40]Employment Co1 / BanB – In my judgement the best evidence that the claimant was in fact an employee of Co 1 / BanB is that the only income she derived from the company was her salary as an employee via PAYE; she never received any directors dividend; and never made any financial contribution to the company. Whilst she was a director /shareholder that simple fact does not in and of itself prevent her from being an employee. However, one of the evidential difficulties for the claimant is that on her own case the written terms of her contract did not reflect the actual terms, which were that it was in fact a part time term time contract and not a full time contract. That may give the appearance that it was never a document which was ever intended to accurately represent the relationship between the parties, which of itself may point away from it being a genuine contract of employment.[41]The respondent submits that: i) On the face of the contract it is a full time contract which taken together with her pay of £12,500 would give an hourly rate of below the national minimum wage , which is inconsistent with a genuine employment relationship; ii) That there is little or no evidence of the exercise of any genuine control over her or her work; iii) That in her questionnaire that she was not subject to any control or guidance; iv) That she was entitled to 28 days annual leave but had only taken nine in the last two years.[42]It submits that these are all contra-indications of employment status which, taken cumulatively, demonstrate that there is not a genuine employment relationship.[43]The claimant submits that the SoS’s position results from the basic misunderstanding of her position a set out above, which she accepts may be because of her failure to explain the position clearly in her questionnaire : i) Her contract was in reality a part-time employment contract; which meant that ii) She was never paid under the national minimum wage for the hours she worked; and iii) Was in reality always under the control of more senior management as she occupied a relatively modest administrative role and did not participate in or control any decision making within the company ; ---12--- iv) If she had not performed her role adequately she could and would have been disciplined/dismissed; v) It is clear from the fact that her only financial relationship with the company was as a paid employee on PAYE that she was genuinely an employee[44]I accept the evidence of the claimant as being entirely honest and reliable; and in my judgement the evidence of the claimant’s financial relationship and contract of employment are sufficient for me to conclude that the claimant was an employee of Co 1 / BanB.[45]Employment Co 3/ BB – As is set out above it is not in dispute that the claimant ceased working for and being paid by Co1 / BanB on or about 1st April 2023 and was engaged by, and paid by Co 3 BB, thereafter. The claimant’s evidence is that at that point she was engaged on exactly the same terms as with Co 1 / BanB, and that no new contract of employment was required as she was informed she was being transferred under a TUPE transfer on her existing terms and conditions.[46]I accept the claimant’s evidence, and in my judgement it follows logically and inevitably, that if she was an employee of BanB then she became an employee of BB as she was engaged on the same terms.[47]The difficulty, however for the claimant is that in order to preserve continuity of employment, and make her eligible for a redundancy payment, that she must not simply have left the employment of BanB and joined BB; but must have done so under the terms of a TUPE transfer. The claimant’s evidence is that this is what she was told, which I accept; but as a matter of fact for the reasons set out below there is in my judgement, no evidence that any TUPE transfer ever occurred.[48]Pursuant to Reg 3(1)(a) TUPE there is a ‘relevant transfer’ of an undertaking or part of an undertaking only where ‘there is the transfer of an economic entity which retains its identity’ post transfer; and where the individual employee is assigned to the undertaking or part of the undertaking which transfers. In this case it appears that there was an intention at some point in the future to transfer the undertakings/businesses of BanB and BunB to BB; but that had not occurred at the point of insolvency; and indeed that the only act pursuant to the proposed transfer was the claimant moving to BB. The evidence before me is that they continued to trade as before, and there was no transfer of the business/undertaking of either to BB. In those circumstances it does not appear to me to be possible to identify any transfer of any undertaking or part of any undertaking to which the claimant was assigned, which could even arguably be considered a TUPE transfer. It follows that in my view, whilst I accept that the claimant became an employee of BB that was not as part of a TUPE transfer; and it follows automatically that her employment with BB commenced on or about 1st April 2023.[49]It follows automatically from this that the question of her employment status at the date of insolvency (i.e. had she ceased to be an employee off BB by the point of insolvency) has fallen away, as the only claim that it could affect is the claim for ---13--- redundancy pay, and on any analysis if the claimant’s employment with BB began in April 2023, she had insufficient continuity of employment with it to be entitled to redundancy pay in any event.[50]However, as it has been argued before me I will briefly deal with the issue. The claimant accepts that after October 2023 her status within BB and her relationship with it formally changed completely. Following her husband’s withdrawal from the business she became the sole director and shareholder; and in effect was in total control of the business. Her hope was that she could see it through and guide a restructure without it becoming insolvent , but she entirely honestly accepted that she had no experience of running a business and not one in significant financial difficulty. Whilst therefore, she was in total control, subject only to the assistance of her husband, it was only because she was the last one standing. She submits that it would be unfair and unreasonable, if she was an employee prior to this point, to hold that she had ceased to be an employee because of events which were effectively outside her control. In addition her husband had remained as an employee with a view to guiding the business through a restructuring plan. However sales leading up to and during the Christmas period was not sufficient to support the plan, and the company became insolvent.[51]I accept this, and have concluded, although in the final analysis, for the reasons given above, it does not assist her claim for redundancy pay, that she remained an employee of BB up until the point of insolvency.