Mr A McIntyre and Mrs F McIntyre v McIntyre Construction Ltd (in liquidation) and Secretary of State for Business and Trade: 3308980/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 3308980/2023
Between
Mr A McIntyre and Mrs F McIntyreClaimant(1) McIntyre Construction Limited (in liquidation) (2) Secretary of State for Business and TradeRespondent
Before
Employment Judge PriceNot attending for claimantDate 12 December 2024
JUDGMENT
[1]All claims made for payments from the National Insurance Fund are dismissed.
REASONS
[1]The claimants did not attend today’s hearing. There was no application made for a postponement of the matter and no explanation provided for their nonattendance. This matter has previously been set down for a hearing on 1 October 2024 and was adjourned due to the second claimant not being well enough to attend. It was also adjourned on a previous occasion on 23 July 2024 on the basis that the notification given to the second respondent did not appear to be adequate. The details of this are set out in the record of case managed dated 23 July 2024 and I do not repeat them here.[2]On 1 October 2024, the tribunal made various directions. The claimants were required to provide a schedule of loss by 22 October 2025. None has bene provided to date. Albeit that the direction stated 2025, this was clearly a typographical error, given the date of the hearing.[3]The second claimant was also required to provide medical evidence regarding her inability to attend the hearing listed for the 1 October 2024. This was to be done by 4 November 2024. She has not done so.[4]The claimants were required provide witness statements by 4 November 2024. They have not done so. Indeed, they have not provided any evidence in addition to that provided by the second respondent.[5]Given that this matter has been adjourned on two previous occasions and in the absence of any application to postpone by the claimants I decided to continue with the hearing. Hearings must be conducted proportionately, this includes the use of tribunal time. In addition, fairness to all parties includes the expeditious conclusion of hearings were possible. Considering these principles and the given this procedural history of this claim to date I decided to proceed today to hear the claims.[6]The claimants made an application to the National Insurance Fund due to the insolvency of the first respondent. This application was rejected on the basis that the claimants had not shown there were employees. They duly made a claim to the tribunal to challenge that refusal. The Secretary of State was joined to the proceedings as second respondent.[7]The issue before me today, concerned whether the claimants were in fact employees of the first respondent. The burden is on the putative employee to show that he or she was employed, Secretary of State v Neufeld and Howe [2009] EWCA Civ 280, at paragraph 88.[8]The second respondent does not accept that the claimants were employees.[9]The second respondent has provided a significant amount of documentary evidence that the claimants were directors of the company. Although one individual can be both a director and an employee. I reminded myself, that whether or not the claimants were employees is a question of fact for the tribunal to decide.[10]The claimants have provided no evidence to the tribunal in addition to the documents provided by the second respondent. They have not attended and not provided any testimony to support their claim.[11]From the documentary evidence before me the financial position is somewhat complex and unclear. Both claimants took dividends payments from the company of £111,000 in 2021. There is no evidence of dividends being paid in other years, although the claimants seem to indicate in their directors’ statement that they may have been. There is no clear evidence of wages been paid in the bank statements provided by the claimants. The PAYE records provided by the second respondent indicate the claimants worked for a different number of hours to that which is set out on their claim form. They also indicate that the claimants received a sum lower than the national minimum wage for the work done. The first claimant did not pay tax or NI under the PAYE system in 2021. The second claimant did not pay tax or N I under the PAYE system in 2020, 2021 or 2022. None of this is conclusive.[12]The claimants stated in a director’s questionnaire they are 50% shareholders each. Again, this is not conclusive.[13]There is no contract of employment in writing. There is no oral evidence of any contract of employment.[14]Further, there is no evidence of personal service, mutuality of obligation or a requirement for personal service. These have been said to be the irreducible minimums of a contract of employment, see Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497 and Nethermere (St Neots) Ltd v Gardiner [1984] I.C.R. 612, at paragraph 623. There is no evidence of any other to whom the claimants were answerable to or under the control of in terms of the delivery of their work. There is no evidence that the claimants provided any consideration for the wages they received. Indeed, there is limited evidence they received wages. Finally, there is no evidence that they provided any work or any services.[15]In these circumstances, I cannot conclude that the claimants have proven they were party to a contract of employment and were employees. It follows it has not been proven by the claimants that the requirements of section 186 or 166 of the Employment Rights Act 1996 have been met for any of the claimed payments to be made from the National Insurance Fund.[16]For these reasons both claims are dismissed.