Lincoln v Secretary Of State For Trade & Industry [1997] UKEAT 48_97_2103

EAT

Lincoln v Secretary Of State For Trade & Industry

[1997] UKEAT 48_97_2103 · 1997-03-21

JUDGE N BUTTER QC:

This is listed as the preliminary hearing of an appeal by Mr Lincoln in respect of a decision of the Industrial Tribunal at Sheffield on 19 November 1996. The Extended Reasons were sent out on 22 November 1996.

Before that Tribunal the Applicant was represented by Mr Nunn. Today, there has been no representation or skeleton argument and we therefore arranged for enquiries to be made. At one stage it seemed that it might be necessary for us to grant an adjournment but we have now received a faxed communication from Mr Nunn which says that the case can proceed on the evidence already before the Employment Appeal Tribunal and in that faxed document he refers specifically to the contents of the Notice of Appeal which we have considered. In these circumstances we propose to deal with the appeal.

The unanimous decision of the Tribunal below was that the Applicant was not an employee of T & A Communications Limited and accordingly, there was no jurisdiction to consider his claim for a redundancy payment and other payments from the Secretary of State. The claim was therefore dismissed.

The Applicant gave evidence to the Tribunal and from that evidence it was clear that, at the relevant time, he had acquired a 55% shareholding in the Company, his wife and daughter retaining the balance between them. He accepted that he was the controlling shareholder.

The Tribunal set out a number of facts and then went on to say in paragraph 7 of their decision:

"7. We have to consider all the facts and ask ourselves what the reality of the matter was. In our view the applicant could not be dismissed by the company as he was in absolute control. In such circumstances we do not see how it can reasonably be said that he was an employee of the company. We think that we are effectively bound by the decisions of the Employment Appeal Tribunal in Buchan v Secretary of State and Ivey v Secretary of State given on 29 July 1996."

That decision has now been reported and can be found in 1997 IRLR at page 80. Mummery J, the then President of the EAT, reviewed in detail the question of the relationship between a shareholder of a company and the company itself, in determining whether the person in question was an employee or not for the purposes of the relevant legislation. At the end of the decision he granted leave to appeal, but from enquiries which we have had made today, it appears that in fact there is no appeal from that decision.

We are satisfied that the Industrial Tribunal here were entitled to reach the conclusion which they did on the facts before them. There is, in our view, nothing to suggest that they erred in law in their approach to the question before them.

In these circumstances and for these reasons it follows that there is no reasonably arguable ground of appeal and accordingly the appeal is dismissed.