Mrs B Gallagher and Mr D Gallagher v The Secretary of State for Business and Trade: 2400501/2025 and 2400502/2025
EMPLOYMENT TRIBUNALS
Case No 2400501/2025, 2400502/2025
Between
Mrs B Gallagher and Mr D GallagherClaimantThe Secretary of State for Business and TradeRespondent
Before
Employment Judge EeleyDate 7 October 2025
JUDGMENT
[1]The claimants were not employed by Galltan Limited under a contract of employment (within the meaning of section 230 Employment Rights Act 1996) at the relevant time for the purposes of these proceedings.[2]The claimants’ claims for payments by the respondent are therefore not well founded and are dismissed.
REASONS
[1]The claimants claim for redundancy payments and other monetary payments from the Secretary of State on the insolvency of their company, Galltan Ltd. The first issue that is the gateway issue for this case is whether the two claimants were employees as well as statutory directors of the company. If not, then the claims have to be dismissed because eligibility for a claim against the Secretary of State hinges on employment status. The burden of proof is on the claimants to establish that status. The Tribunal was assisted by Miss Gallagher, the claimants’ daughter, who represented them in their absence today. The claimants themselves did not attend the hearing. I understand and am satisfied that Mr Gallagher has suffered a significant back injury and that his wife is engaged in caring for him at present.[2]Witness statements were submitted by the claimants but the claimants themselves were not available for cross-examination. Miss Gallagher attended as a representative rather than as a witness giving evidence to the Tribunal. In the absence of the claimants the weight to be given to the claimants’ evidence is somewhat less than would otherwise have been the case. They were not available to answer questions so the evidence that they could give was limited to that which was in writing. There were some gaps in the evidence which could not be filled by them in oral evidence. Further, the witnesses were not cross-examined and their evidence was untested and so, again, there is less weight to be given to the contents of their witness statements.[3]At the outset of today’s hearing, I explained the significance of the claimants’ absence to Miss Gallagher in terms of the weight to be attached to her parents’ evidence and the fact that the available documentary evidence could not be supplemented by oral evidence. She understood that the claimants’ case would not be as strong if they did not attend the hearing. She was made aware that she could make an application to adjourn the hearing until her parents could attend (which I would consider and decide) and there was also some discussion about whether Mrs Gallagher could log on to the hearing even though Mr Gallagher was too unwell to attend. I gave Miss Gallagher some time to contact her parents and take their instructions as to what they wanted her to do.[4]On resuming the hearing, Miss Gallagher confirmed that there would be no application to adjourn the hearing so that her parents could attend and her mother would not be able to log onto the hearing today either. The case would proceed based on the available documentation and the oral submissions of the parties’ representatives. Miss Gallager provided me with a copy of Mr Gallagher’s fit note and also an Excel spreadsheet regarding furlough payments. It follows from what I have just said that my findings have to be based largely on the documents that are available to me.[5]In order to determine the case, I had regard to the following documents: 5.1. A hearing bundle containing documents provided by all parties. It contained 211 electronic pages; 5.2. A bundle of case law produced by the respondent containing 95 electronic pages; 5.3. An Excel spreadsheet from the claimants detailing furlough calculations for the claimants for September 2021. This was produced by the claimants’ accountant. 5.4. Photographs of three pages of Mr Gallagher’s GP records detailing his back injury. 5.5. Mr Gallagher’s fit note dated 18 July 2025. 5.6. Two brief witness statements sent by the claimants on the morning of the hearing.
Findings
[6]This case arises, very sadly, out of the insolvency of the family company, Galltan Limited. The claim form was submitted to the Tribunal on 13 February 2025. The claimants’ applications for payment of redundancy and other monetary sums had been refused by the Secretary of State and so the claimants were redirected to the Employment Tribunal.[7]The company had entered creditors’ voluntary liquidation on 20 December 2024. Prior to the existence of the limited company, it appears that both claimants may have been in the same line of business (construction, civil engineering and groundworks) using a partnership or other business model from 1999 (i.e. rather than a limited company). To that extent both witnesses said in their statements that they had been employed by the company since 1999. That, of course, has to be incorrect. They may have been engaged in the same business, but the limited company did not exist at the start of this chronology so they cannot have been employed by the limited company since 1999.[8]The date of incorporation of the company was 22 December 2003. The claimants were both founding directors of the company, there were no other directors. They had a shareholding which was split 50/50 between the two of them. From the documents that I have seen it is apparent that there may have been a maximum of four putative employees of the company. I have heard today that at one stage or another both the claimants’ son and daughter were engaged or employed by the company in addition to, it is alleged, the claimants.[9]The statement of affairs on liquidation shows a directors’ loan account valued at £120,000 and also confirmed the 50/50 shareholding arrangement. The director’s questionnaire indicated that there had been £450,000 paid into that account over the years, although it is not clear at what stage of the chronology. Pay[10]I have had various matters to consider in terms of the relevant factors in the case. Looking first of all at pay, the claimants say in their statements that they were paid using the PAYE system since 1999, that the regular wage was £250 per week, and that these wages were their only income from the company. The RPS application form says (according to Mrs Gallagher) that there was a payment of £311.20 per week, which may be the gross figure for the £250 (that is unclear.) Mr Gallagher, in his RPS form, refers to pay of £320.40 per week. I also considered the RP14 for both claimants. This indicated payments of £250 for both of them. The director’s questionnaire indicated that there had been no pay received by either claimant, pursuant to a contract of employment, between August and December of 2024.[11]In terms of wages there were some other sources of information. The RPS application indicates that Mrs Gallagher was unpaid for the period from 17 October to 5 December 2024 and the claim is therefore for £2,391.40 for a total of 40 unpaid days during the period. Mr Gallagher claims a sum of £2,475.80 for the same period of 40 days. In his application form he indicated that, in fact, he had had a new job since the insolvency of the company but that was on a self-employed basis (page 106 in the bundle.)[12]I also had regard to the P60s submitted on behalf of both claimants. For Mrs Gallagher there were stated annual earnings over a period of years fluctuating between £9,340, £12,627.60 and then £9,119.60. Over the same three years we had Mr Gallagher’s P60s indicating pay of £10,183.91, £10,254.40 and £9,309.40. There were also pay slips from both claimants indicating, effectively, that there was tax deducted but not National Insurance (because of the level of pay.) The sums payable fluctuated over time. In the payslips before me for Mrs Gallagher, I could see sums ranging from £156 to £312.40. Likewise for Mr Gallagher, the sums recorded varied between £172.20 and £320.60. Neither of the claimants were contributing to a workplace pension.[13]The document at page 211 of the bundle, titled “RP14A details for Bernadette & David Gallagher” indicated basic pay of £250 per week, 28 days of holiday per annum and 40 hours of work per week. Hours[14]In terms of hours, the witness statements indicated that both claimants worked 40 hours per week. In the RPS document Mrs Gallagher says she worked 30 hours per week, five days a week, with no overtime. Mr Gallagher says he worked 30 hours a week, five days a week, plus overtime of four hours per month. The director’s questionnaire suggested, in respect of both claimants, that the hours of work varied over time with a minimum of 28 hours per week. I pause there to note, therefore, that there are potentially three different positions in relation to the claimants’ hours of work. Dividends[15]There is evidence on the paperwork that the claimants never received dividends from the company because there was not enough money in the company to afford it, although I suspect it was hoped that that might change at some point during the life of the business. Contract of employment[16]Crucially, there is no written contract of employment available in this case. This means that my task is not to look at a written terms and conditions and try to ascertain whether the documents reliably reflect the reality of the relationship between the parties (as is often the case where it is argued that the written document is a sham contract.) I have no such documentary starting point. I have to discern what I can from the other surrounding documents and evidence. Job duties[17]The claimants say that they had set duties, set hours of work and regular wages, but in the absence of a written contract, I have to look elsewhere for confirmation of that. I am also without the benefit of oral witness evidence to elaborate on the terms of the contract or the nature of the obligations between the claimants and the company. I note that, at some point, Mrs Gallagher described herself as a housewife prior to the incorporation of the company. That is detailed on the director’s questionnaire. Both claimants gave very brief examples of their work duties in their written witness statements. They included (in Mrs Gallagher’s case) book-keeping, accounts, customer service, admin, stock ordering and supervision for 40 hours per week. In Mr Gallagher’s case, he was operating plant/machinery, providing customer service, ordering stock and supervision for 40 hours per week. That was the limit of the information that I had before me. Holidays[18]In relation to holidays, the RPS application form for Mrs Gallagher says that they were entitled to 28 days per annum and that she had carried over eight days of annual leave from the previous year. It is unclear where that entitlement to carry over days of annual leave from one year to the next arose from. Likewise, Mr Gallagher, in his RPS application, said that he had 28 days of annual leave per annum and that he had carried over eight days of leave from the previous year. In addition, in his director’s questionnaire Mr Gallagher noted that he had not taken any holidays or bank holidays over the last two years. Control/supervision[19]In the director’s questionnaire both of the claimants effectively indicated that there was no supervision exercised over the work they did as employees (other than the existence of the other director.) There was nobody who could subject either claimant to any disciplinary measures. As I do not have a written contract, or indeed a written disciplinary policy or other employment policies to consider, I cannot subject that to any sort of scrutiny.[20]I also received a document this morning in relation to furlough. That document is an Excel spreadsheet which corresponds with the director’s questionnaire. In the director’s questionnaire the claimants say that they were paid furlough during the covid pandemic and that this is something which shows that they were employed and that the government accepted them as being employed. There are two difficulties with that from the Tribunal’s perspective. The first is that the Excel spreadsheet, at best, shows the figures that were submitted to the government (i.e. the calculations.) It does not show that those sums were actually paid to the claimants by the government under the furlough scheme. There is no evidence that furlough was actually paid to them (whether in an official document or otherwise.) The second difficulty is that tests of employee status vary depending on the context or the area of government business under consideration. The test to decide whether someone is an employee differs according to the context; it is not always the same. Thus, it is perfectly possible that the same individual will be considered to be an employee for tax or National Insurance purposes (or indeed for furlough purposes) whilst not being considered an employee for the purposes of employee rights and employment tribunal claims. So, even if the claimants were paid furlough by the government, this would not be determinative of employment status in the Employment Tribunal for the purposes of the claimants’ claims in these proceedings. Bank statements[21]I also had access to a set of bank statements which were said to be the company’s bank statements. There were various aspects of those statements which were either drawn to my attention by Mr Soni on behalf of the respondent or which I saw during my own examination of the documents. Some of the entries included repeated funds transfer amounts, which Miss Gallagher suggests may have actually been the wage payments for Mrs Gallagher. Apparently, this was something to do with the way that the group of bank accounts were set up and the way it would be reflected in the bank statement. It may well be the case that they coincide, certainly in terms of timing, with the other payments out of the account which were labelled as wages payments for Mr Gallagher and, on occasions, Miss Gallagher, but I do not have clarity on that and I do not have evidence from Mrs Gallagher that that is what they do, in fact, reflect. So, there is a question mark about that.[22]There are other payments that are notable. I see a payment on 15 December 2023 to Holiday Extras UK. I heard submissions about repeated payments to Sky. Miss Gallagher indicated that, in fact, rather than being a personal subscription to Sky this reflected the fact that the company’s office was operated from home premises and required broadband. She suggested that that was what these payments were for and that is what that payment was for. There are other payments, for example on 25 January 2024, to or from the Post Office. It is not entirely clear what they are.[23]There are payments to various supermarkets, including Asda, Tesco, etc. Miss Gallagher sought to explain those as either fuel payments (for work purposes) or petty cash. However, I also noted repeated payments to a company that seems to be referred to as “Fuel Genie”, which may or may not be instead of fuel payments (or may run alongside the alleged fuel payments.) This is the difficulty with the absence of oral witness evidence: I am unable to get answers to these sorts of questions.[24]I also noticed some payments to ‘Nest.’ These seem to be payments to the Nest pension scheme. Thus, it appears that somebody in the company was receiving pension contributions from the company, albeit not the two claimants who have brought this case to the Tribunal. They have said that they were not members of the pension. This may serve to distinguish their situation from that of the other people that the Secretary of State has accepted were employed by the company. Those employees may well have been enrolled in the Nest pension scheme.[25]There is also a reference to payments to Ryanair [page 186]. It not known whether that is business related or not. There are payments to eBay. Again, I query whether that is employment related/business related or not. There are payments to Crow’s Nest Stables. Again, I query whether that is business related or not.
The law
[26]I have to discern the correct legal principles and apply them to the information before me.[27]I must consider the definition of employment in Section 230 of the Employment Rights Act 1996. In order to be entitled to the payments which they claim, the claimants have to be employees rather than workers or some other form of person engaged in business on their own account. I do, however, remind myself and bear firmly in mind, that the claimants can have two statuses simultaneously. It is possible to be a shareholder and director of a company and still be employed by that company. It is clear on the face of the paperwork and on both sides’ submissions that both claimants were directors of the limited company. That does not mean that they cannot simultaneously be employees of the company. There are no written terms and conditions of employment that I can go to as a basis for my conclusions. I have to try and look to find what the obligations of the parties were under any contract in order to determine what type of contract that was.[28]The burden of proof is on the claimants to establish the facts which support a conclusion that they were employees.[29]I have reminded myself of the well-established test set out in Ready Mixed Concrete Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433. That case suggests that a contract of employment will exist if the worker agrees to provide his own personal service to the employer in return for remuneration; that in performing that service he will be subject to the employer’s control to a sufficient degree to make the employer ‘master’; and the other provisions of the contract are consistent with it being a contract of service.[30]In order for there to be a contract of employment there must be an irreducible minimum of mutuality of obligation. There must be an obligation on the employer to provide work and an obligation on the employee to perform that work. I have also reminded myself that this falls into a category of case which is less than straightforward because it involves the owners and directors of a small family business. In such cases the classic hallmarks of employment (that one sees in cases involving larger companies) which help us to determine employment status are often not as clearly present. The case law does indicate that that, in itself, should not necessarily weigh against the individuals being found to be employees. Thus, the fact that someone is a majority shareholder in the company may be relevant, it may even be decisive, but its significance depends on the context.[31]The case of Rainford v Dorset Aquatics Ltd UKEATPA/0126/20/BA indicates that it does not necessarily follow that because someone is paid for work done for the company that they are an employee.[32]I have had regard to Secretary of State for Business Enterprise and Regulatory Reform v Neufeld [2009] EWCA Civ 280 which talks about two core issues. The first issue is not directly relevant here as it addresses whether there is a genuine or a sham contract (whereas in this case there is no contract document.) The second issue addressed is whether any contract amounts to a contract of employment. It directs me to look at the situation at the time of the insolvency, rather than at a previous date.[33]Just because an individual is a company director this does not automatically mean that they are (or are not) also an employee. The burden of proof is on the claimants to show me that they were employees of the company as well as its directors. The type of pay (i.e. salary as opposed to director’s fees) may be relevant. The work that is done for the company by the individual might be carried out in their capacity as a director or in their capacity as an employee of the company. I have to apply a contractual test.[34]It is relevant to consider whether the employer has sufficient control over the alleged employee. However, against the backdrop of the alleged employee also being a majority shareholder, this factor may be of less relevance than in other cases. It may not ‘tip the balance’ for or against the conclusion that the individual is an employee. Loans to the company and shares in the company are a feature of this kind of case. Holding shares and providing loans to a company is usually done in the individual’s capacity as director of the company rather than as an employee. For that reason, such features may not be relevant in a case such as this. They may just indicate the circumstances where the director or shareholder is acting as the director or owner of the company.[35]I also had regard to Clark v Clark Construction Initiatives Ltd [2008] IRLR 364. I ask myself whether the parties conducted themselves in accordance with a contract. There are a number of relevant factors highlighted in Clark which are those set out at subparagraphs (a) through to (h) in the headnote of the case report (I have already set some of them out elsewhere in these reasons):(a) Where there is a contract ostensibly in place, the onus is on the party seeking to deny its effect to satisfy the court that it is not what it appears to be. This is particularly so where the individual has paid tax and national insurance as an employee. He has on the face of it earned the right to take advantage of the benefits which employees may derive from such payments.(b) The mere fact that the individual has a controlling shareholding does not of itself prevent a contract of employment arising, and nor does the fact that he in practice is able to exercise real or sole control over what the company does.(c) Similarly, the fact that he is an entrepreneur, or has built the company up, or will profit from its success, will not be factors militating against the finding that there is a contract in place. Indeed, any controlling shareholder will inevitably benefit from the company’s success, as will many employees with share option schemes.(d) If the conduct of the parties is in accordance with the contract that would be a strong pointer towards the contract being valid and binding. For example, this would be so if the individual works the hours stipulated or does not take more than the stipulated holidays.(e) Conversely, if the conduct of the parties is either inconsistent with the contract or in certain key areas where one might expect it to be governed by the contract is in fact not so governed, that would be a factor, and potentially a very important one, militating against the finding that the controlling shareholder is in reality an employee.(f) In that context, the assertion that there is a genuine contract will be undermined if the terms have not been identified or reduced into writing. This will be powerful evidence that the contract was not really intended to regulate the relationship in any way.(g) The fact that the individual takes loans from the company or guarantees its debts could exceptionally have some relevance in analysing the true nature of the relationship, but in most cases such factors are unlikely to carry any weight. There is nothing intrinsically inconsistent in a person who is an employee doing these things. Indeed, in many small companies it will be necessary for the controlling shareholder personally to have to give bank guarantees precisely because the company assets are small and no funding will be forthcoming without them.(h) Although the courts have said that the fact of their being a controlling shareholding is always relevant and maybe decisive, that does not mean that the fact alone will ever justify a tribunal in finding that there was no contract in place.[36]The absence of control does not prevent employment status. The fact that someone is an entrepreneur does not stop it being employment. I have to look at whether conduct is in accordance with a contract, which would be in favour of employment, or whether it is not. For example, do they take stipulated holidays, or take less than the stipulated holidays? Is there conduct inconsistent with a contract or not governed by the contract?[37]I also note the decision in Secretary of State for Business Innovation and Skills v Knight [2014] IRLR 605. In that case the claimant was also the Managing Director of the business and owned 100% of its shares. When the company started business a contract of employment was drawn up between the claimant and the company which set a particular salary. Instead of receiving the stated salary the claimant received varying amounts over a number of years and then stopped being paid altogether. The Tribunal found that when the company had run into difficulties the claimant, in an effort to keep it afloat, had not taken her contractual entitlement. This did not mean that there was no contractual entitlement, just that she chose not to enforce it. The Secretary of State appealed and argued that in forfeiting her payments for the last two years the claimant had agreed to change her status away from that of an employee. The EAT held that the fact that an employee decides not to require her company to pay her salary as an employee does not necessarily lead to the conclusion that she must have entered into an agreed variation of the contract or a discharge of the contract. In that case the question of whether the regularity of payment had negatived the continuing existence of a contract of employment had been a matter of fact for the Tribunal. The Tribunal had needed to decide whether the evidence had shown that the contract of employment had been varied or discharged or whether there had only been a choice by the claimant not to take her salary when the company was in difficulties. The fact that the worker says they do not have to be paid the salary does not necessarily mean that the contract has been varied or discharged. The EAT found that the Tribunal had not made the mistake of thinking that because the relationship had once been governed by a contract of employment, that meant that there must be a contract of employment at the relevant time. The Tribunal had examined the position at the relevant time and made a factual conclusion about it. It was also observed that money need not be the only form of consideration moving under a contract of employment.[38]I have had regard to the principles set out in Eaton v Eaton Ltd and Secretary of state for Employment [1988] IRLR 83. The EAT found that the Tribunal had not erred in concluding that the Managing Director was not an employee. The headnote notes that, in the case of a managing director, evidence is required to show that they were also an employee of the company as well as a director. It emphasised that every decision is based on the particular facts of the case. It noted some of the factors to be considered included whether there was an express contract of employment, or a board minute or a written memorandum constituting an agreement to employ the person as director etc; whether remuneration was by way of salary rather than director’s fee; whether remuneration was fixed in advance or made on ad hoc basis; whether remuneration was by way of entitlement rather than gratuitous; and the functions actually performed by the director (was he under the control of a Board or merely acting in his directorial capacity.) I have noted that Eaton refers to board minutes or memoranda. I do not have any of those to look at in this case. It also asks me to look at the actual functions performed under the contract, whether they can be considered to be directorial or under the control of an employer.[39]I have also had regard to the decision in Fleming v Secretary of State for Trade and Industry [1997] IRLR 682. In that case it was observed 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 that factor will depend on the circumstances, and it would not be proper to lay down any rule of law to the effect that the fact a person is a majority shareholder necessarily and, in all circumstances, implies that that person is not an employee. I also had regard to the decision in Dugdale v DDE Law Ltd UKEAT/0169/16/LA.
Conclusions
[40]So, what are my conclusions? First of all, the burden of proof is on the claimants applying the standard of proof of the balance of probabilities. The claimants must establish that the features of a contract of employment were present in this case. It is not a given. They have not given oral evidence, answered questions, or requested a postponement. I cannot act as though they have attended or try to fill in the evidential gaps to assist and to make up for the absence of that oral evidence.[41]There is no written contract of employment. I do not have an express written contract of employment to use as a starting point. I am not tasked with deciding whether a written contract is a sham contract because there is no such written contract.[42]If I am to conclude that the claimants were employees, I will have to have the evidential basis for concluding that a contract of employment must be implied in the absence of an express agreement. I need to make factual findings based on other evidence from which I can draw my conclusion.[43]I accept that, in principle, the claimants can be shareholders, directors and employees simultaneously, but it is for the claimants to establish that they have these multiple legal identities.[44]I accept that in this case there is an absence of the sort of control which is usually consistent with a classic case of employment status. However, I also accept that in a small family business that may not be fatal to the existence of an employment contract. There is certainly no element of control being exercised over the claimants as employees in the documentary evidence I have seen in this case.[45]The witness statements I have are very brief. They do not tell me how the contracts were formed at the beginning of the relationship or how they operated from day to day. It is very hard to assess, in the absence of that sort of detailed information, how they operated in practice and whether the way that they operated was consistent with the features of a contract of employment. In a nutshell, there is an absence of evidence to support the claimants’ case. In the absence of their oral evidence or a written document I cannot tell what the terms of the contract between the claimants and the company were. A contract of employment is more than just an agreement to pay wages for work. It would normally contain contractual terms about things such as notice periods, policies and procedures, location of work, holiday entitlements, sickness entitlements, the list goes on. I do not have evidence from witnesses or documents to fill in the blanks to see what the contract of employment would entail in this case.[46]Was the remuneration in this case referable to a contract of employment or was it a director’s payment/fee or was it both? It is impossible for me to say on the evidence in front me. The rates of pay fluctuated over the years. It is likely (based on what I have seen) that they were paid less than the minimum wage. If it was intended that there should be a contract of employment between the claimants and the company, one would expect it to comply with all the relevant legal obligations, including the obligation to pay at least the minimum wage. The absence of payments at or above minimum wage levels of remuneration would tend to suggest that there was no intention to create a contract of employment, either at the outset or towards the end of the relationship. Taking it at its best, the hourly rate of pay fluctuates (depending on which figures you look at) from anything between £5.73 per hour and £10.37 per hour. Much, if not all of this, is below the level of the National Minimum Wage for the relevant periods of time.[47]There are also discrepancies regarding the hours of work. I am, therefore, left unsure as to what, if any, contractual obligation there was to do a minimum level of work. Was it an obligation on the claimants or was it a decision made in an ad hoc way, in the course of business, for the claimants to work 28, 26, 30, 40 hours per week, either with or without overtime? The claimants were not paid from August to December. There is nothing to help me draw conclusions as to why they were not paid. Did the claimants choose not to take or enforce a payment to which they were contractually entitled (which might be consistent with employment in line with the decision in Knight)? Or did they receive no pay because there was no real legal, contractual obligation to pay them at all? Given the absence of evidence, I cannot say that it is the former rather than the latter.[48]I was referred to the fact of the director’s loan. I do not think this is relevant. Payment into a director’s loan account is not inconsistent with employment. The payment can be made in the individual’s capacity as a director rather than in their employee capacity.[49]The claimants were paid via PAYE but that is not determinative. PAYE is an HMRC mechanism. Even so, it is not clear where the salary payments to Mrs Gallagher are in the bank statements before the Tribunal.[50]In the evidence before me there is no evidence of supervision of the claimants as employees. There is no detail given showing the way they worked as employees, which bits of their work were done as directors running the business, or which portion of their work was attributable to a contract of employment. I have no real specifics on which to base a decision. Furthermore, there are no disciplinary or grievance documents or procedures. There is no evidence of dividends but that is not determinative given the case law. There is no evidential basis on which I can understand the claimants’ holiday entitlement. I am also conscious of the fact that the evidence suggests that at least one of them took no holiday for two years. Again, that would suggest that they were not acting in accordance with employment rights and obligations as opposed to choosing (of their own free will) when and if to take holiday. One would expect to see records of employees taking their paid holiday entitlement.[51]There is no company paperwork to fill in the gaps. For example, there are no timesheets, details or records of hours worked by the claimants. These are the sorts of details which an employer would hold in relation to an employee, and which would provide back-up/an audit trail for the payments made to employees via PAYE. The claimants were both paid at a level where there was no National Insurance due.[52]I do not know if the claimants had any other sources of income which were not related to the company. However, I am satisfied that I have seen everything that they received from this company.[53]Regarding furlough during the pandemic, there was no evidence of actual payments being made to the claimants. It is also true to say that the test for eligibility for furlough payments was different to the test for employment status which I have to apply in this case.[54]I have already indicated there is some potential discrepancy regarding pension entitlement. Somebody in the company was enrolled in a pension but I am told that it was not either of these claimants. That might serve to distinguish them from others who were said to be employees within the company. They were treated differently even though they were all said to be employees.[55]Some of the bank statement entries are not obviously business expenses or salary expenses. They may be personal expenditure. However, it is not clear whether payments are being drawn as directors or as employees and the claimants did not attend for cross examination. I am left with unanswered questions in this regard.[56]Taking all of the available evidence and relevant circumstances into account, I am afraid that, on balance, there is insufficient evidence here for me to be satisfied that the requirements for a contract of employment are met in the claimants’ case at the relevant time. I do not have sufficient to be satisfied of mutuality of obligation or control. There is insufficient information and evidence for me to be satisfied that the relevant indicators for employment are present. I am unable to imply a contract of employment where there is no express contract of employment. The claimants did do work, and they were paid for it but, as Rainford suggests, that is not sufficient in itself for employment status. I have no company documents (such as memoranda or board minutes) to assist me either. Finally, I note the payment of a taxefficient salary, which again does nothing to assist the claimants.[57]The claimants have failed to prove their case and provide the necessary evidential basis for a conclusion that they were employees at the relevant time. For the reasons I have stated at some length, I am afraid that the claimants cannot satisfy me that they were employees within the meaning of section 230 and so the claims are dismissed for the reasons given. Approved by: