Mr M Wilk v Apex Photo Agency Ltd (In Creditor’s Voluntary Liquidation) and The Secretary of State for Business and Trade: 6020405/2024 and 6005420/2025 Mr M Wilk v Apex Photo Agency Ltd (In Creditor’s Voluntary Liquidation) and The Secretary of State for Business and Trade: 6020405/2024 and 6005420/2025
JUDGMENT
The judgment of the tribunal is that- i) The claimant’s application to revoke or vary the Judgment is dismissed.REASONS
[1]On 5th September 2025 I heard the final hearing in respect of these claims. The central issue was whether the claimant was an employee of R1 at the material times. If he was he would be entitled, subject to the appropriate calculations, to statutory payments from R2 following the insolvency of R1.[2]The claimant’s case was that whilst he did not at any stage have a written contract of employment, that there was either an oral or implied contract of employment between him and R1. The Secretary of State disputed this and contended that he was not an employee of R1.[3]I concluded that the claimant was not an employee of R1, and that accordingly no liability attaches to the Secretary of State. The claimant now seeks reconsideration of that decision. 1 of 3[4]General Power - Rule 70 of the ET Rules gives the tribunal a general power on reconsideration to confirm, vary or revoke the original decision where it is in the interests of justice to do so. However that does not give the tribunal a completely freestanding discretion to reconsider or vary/set aside any judgment In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC accepted that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. Application[5]The essence of the re-consideration relates to the summary of the claimant’s case as set out in the original judgment at para 37: i) That carrying out work for R1 necessarily establishes a contractual relationship; ii) That irrespective of the amounts or frequency of the payments that receiving PAYE payments from R1 was indicative of an employment relationship; iii) That his written submissions contained a detailed analysis of the tasks he carried out for R1(although these are set out on para 6). He contends that these duties cannot arise simply by reason of his being a director/ shareholder but are the sort of duties a company would ordinarily employ people to perform[6]In addition he asserts that receiving less than the NMW cannot in and of itself displace a contractual employment relationship if the ordinary elements of offer acceptance and consideration are present.[7]With due respect to the claimant these were all arguments that were before me at the first hearing. For the reasons set in the Judgment, in circumstances in which the claimant was the sole director shareholder and had never had a written contract of employment, in my judgment some compelling evidence would be required to imply the existence of an employment contract; and I was not persuaded that there was any, or any sufficient, evidence to allow me to imply the existence of a contract of employment. Nothing in the reconsideration application has caused me to revise that conclusion, and it follows that the reconsideration application must be dismissed. 2 of 3