SECRETARY OF STATE FOR TRADE & INDUSTRY v MR P BOTTRILL [1997] UKEAT 516_97_1201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1997] UKEAT 516_97_1201

Case No Appeal No. EAT/516/97

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SECRETARY OF STATE FOR TRADE & INDUSTRYAPPELLANT

MR P BOTTRILLRESPONDENT

Before

Mr Justice Morison

Date 12 January 1997

This is an appeal which raises the question whether, and, if so, in what circumstances, a director and controlling shareholder of an insolvent company may recover from the Secretary of State for Trade and Industry payments in respect of debts falling within section 184 of the Employment Rights Act.

The Facts

The facts relevant to this appeal may be shortly stated.

Mr Bottrill, the respondent to the appeal ['the Applicant'] was encouraged, through his local Training and Enterprise Council, to set up a new business. He was put in touch with an organisation in the USA called Magnatech Inc, which supplied certain products for use in the area of 'magnetic field technology'. Mr Bottrill, with others, bought a company off the shelf. It was named Magnatech UK Limited. One share was issued and transferred to the Applicant. There was one other director, and two others who were employees. The Industrial Tribunal held that the shareholding was "only intended to be a temporary matter". The ultimate intention was that the Magnatech Group of companies in the USA would invest in the UK company and acquire some 80% of the equity. A draft agreement giving effect to this arrangement was prepared, but it was never executed.

The Applicant entered into a contract of employment with the UK company as from August 1994, under which he was paid a salary from which tax and National Insurance Contributions were deducted in the normal way. He was not paid any directors' fees. He rendered his services to the UK Company and to no other person or corporation. The company got into financial difficulties; and, as from January 1996, the applicant received no wages because, as the Industrial Tribunal accepted, there were no cheque books available to effect the payments. On 19 April, 1996 a receiver was appointed. The applicant told us that the company went into voluntary liquidation. The Tribunal accepted that the applicant was redundant and that his weekly rate of pay was £346.15.

The Industrial Tribunal's Decision

The essence of the Industrial Tribunal's reasoning is contained in paragraphs 8 - 10, inclusive, of the written Decision:

"8. The applicant's claim was for a redundancy payment and other debts owed. The first matter for the tribunal was to decide whether the applicant was an employee. Section 230(1) of the 1996 Act defines an employee as an individual who has entered into or works under (or where the contract of employment has ceased, worked under) a contract of employment. A contract of employment is defined in the same section as a contract of service whether express or implied and (if it is express) whether oral or in writing. The respondent, in their written submissions, accepted that a director of a company can be an employee in addition to being an office holder of the company. They also drew the tribunal's attention to the cases of Eaton v Robert Eaton Ltd and Secretary of State for Employment [1988] 1CR 302, Wilson v Trenton Service Station Ltd [1987] and McLean v Secretary of State for Employment [1991]. The tribunal was not referred to, but nevertheless was aware of the cases of Buchan and Ivey v Secretary of State for Employment [1996]. In both these cases it was decided that control is the vital question in order to decide whether a majority shareholder in a small company is an employee for the purposes of employment protection. A controlling shareholder cannot be an employee because his control means that he cannot be dismissed by the company without his consent. This tribunal is bound by decisions of the Employment Appeal Tribunal. It also considered the decision of Lee v Lee's All Farming Ltd [1961] AC 12 . This tribunal is aware that the decisions in Buchan and Ivey are subject to appeal to the Court of Appeal.

9. It is the unanimous decision of this tribunal that the facts of this case can be distinguished from the Buchan and Ivey cases. In this case it was quite clear that the position at the time the company went into receivership was still a temporary position prior to a shareholders' agreement being signed. The 100% shareholding was theoretical rather than actual and therefore the applicant's control so far as employment protection is concerned was also theoretical rather than actual. Consequently the tribunal considered that it was appropriate to look at the evidence and to decide facts which pointed to the applicant being an employee as well as managing director of Magnatech UK Ltd and also facts which pointed to the applicant being merely a managing director and not an employee of Magnatech UK Ltd.

10. On balance it was the facts which suggested that the applicant was an employee which outweighed those which suggested that he was not and therefore the tribunal concluded that the applicant was an employee. Facts which indicated that the applicant was an employee included that he paid tax and national insurance as if he was an employee, that he was not employed in any other employment during the time of employment, that his contract of employment was signed and dated and indicated that he was an employee, that he was entitled to holidays and sick pay, that he worked every day from 8.30 am to 5.30 pm and that he was paid by salary and not directors fees. Facts which indicated that he was not an employee included the theoretical control exercised over the company, the fact that he had actually taken eight days holiday rather than 16 in his final year's employment and that he had not received pay from January 1996 (although the tribunal accepted the applicant's evidence that the company did not have cheque books available to make such payment because they were in the hands of the company's accountants)."

The Arguments

The Secretary of State appealed to this Court and, in a helpful argument, Ms Eady, on her behalf, contended:

The applicant was not an employee as he was the sole shareholder of the Company. She submitted that:

(1) an individual who holds the sole or controlling share holding in a company is not to be regarded as an employee for the purposes of section 230 of the Employment Rights Act 1996: Buchan & Ivey v Secretary of State for Employment

[1997] IRLR 80

;

(2) economic or commercial control of a company is not relevant to the question of employment status; whether another company controlled Magnatech UK as a matter of economic or commercial reality is irrelevant. In Ivey the individual's company was the franchisee of the importers of Alfa Romeo Cars and was commercially dependent upon them for its existence;

(3) the relevant date for determining whether the Secretary of State is liable to make the payment is at the date when the company became insolvent: Rajah v Secretary of State for Employment :

EAT/125/95

Mr Bottrill urged us to accept the Industrial Tribunal Decision. He objected strongly to the words in Ms Eady's written argument 'a document purporting to be a contract of employment'. He accepted her assurance that she was not alleging that the agreement was a sham, but he pointed out that the Fund from which the Secretary of State made payments was funded partly if not entirely from National Insurance Contributions which he had paid as though he were an employee. This was a case where the State was happy to collect its money from him on one basis, but then denied him any relief on a different basis.

The Decision

The essence of the decision of the EAT in the Buchan & Ivey appeals is to be found in the passage from Mummery J's judgment helpfully cited in Ms Eady's skeleton argument.

"We shall confine our consideration of the authorities to those which most closely bear on the issue of a director and shareholder of a company who claims also to be an employee. There are relatively few authorities on this point. It is possible to state the relevant legal propositions with reasonable certainty and without the need to review all of the cases in detail. The following uncontroversial propositions can be derived from the authorities:

(1) A limited company is a distinct legal entity from those individuals who own shares in it and those who are directors of it.

(2) A director or managing director of a limited company may enter into and work under a contract of service with the company.

(3) A shareholder in a company may enter into and work under a contract of service with the company.

(4) A person will usually be regarded as having entered into and as working under a contract of service if he is bound by contract (whether express or implied, whether in writing or orally),(a) if he is bound to devote all his time to the affairs of the company and to do all in his power to develop and extend its business, and

(b) if he is engaged on terms which provide for the payment of a regular fixed salary and for determination of that contract.

These propositions may be derived from the following cases ... Trussed Steel Concrete Company Limited v Green

[1946] CH 115

at 121; Lee v Lee's Air Farming Limited

[1961] AC 12

; Folami v Niger Line UK Ltd

[1978] ICR 277

, at 280; and Eaton v Robert Eaton Ltd

[1988] IRLR 83

(The last case identifies many factors relevant to employee status but is not a case of a controlling shareholder).

The application of the legal propositions summarised above to the facts of a particular case may produce a different legal result according to whether or not the claimant has a controlling interest in the company. If the claimant is able, by reason of a beneficial interest in the shares of the company, to prevent his dismissal from his position in the company, he is outside the class of persons intended to be protected by the provisions of the [1996] Act and is not an employee within the meaning of the Act. A controlling shareholder can prevent the company from dismissing him from his position. It would be inconsistent with the purposes of the [1996] Act to extend protection to a person who cannot be dismissed from his position in a company without his agreement. This result conforms both to common sense and to the industrial and commercial realities of the situation. It is, however, common for submissions to be made on behalf of a controlling shareholder in support of the proposition that he is an employee of a company most frequently based on Lee v Lee's Air Farming Ltd ... [T]hat argument ignores the context in which Lee's case was decided. That was a case of a claim for compensation for a dependent in the event of an accident to an employee. That purpose would be defeated if it were held that Mr Lee was not a worker under a contract of service.

The issue in this case arises in the context of employment protection legislation. [I]t is difficult, in an employment protection context to conceive of circumstances in which Mr Lee could have been regarded as an employee of the company."

There is a background to these cases which is relevant. The Secretary of State is faced with a considerable number of claims. We were not told the number at the appeal hearing, but we know from experience that it is much more than a mere handful. The number of claims will reflect the state of the UK economy in the economic cycle. The practice of the Department is, therefore, to investigate claims and, in lieu of appearing before the Industrial Tribunals, make written submissions for their consideration. This is a perfectly proper practice in the sense that every party has the right not to appear before the Industrial Tribunal and to invite it to consider their written representations, and the Rules of Procedure cater for this possibility. No doubt it is thought by the Department to be more cost effective than trying to appear in every case. As the Tribunal noted, however, where there is an issue of fact they will be inclined to prefer the evidence given to them orally than accept what is said on paper, unless the fact may be ascertained from a formal document such as a company return filed at Companies House.

If and when the Department, as here, is dissatisfied with a Decision then they have the right to come to this Court, and do so, invariably with the assistance of experienced counsel, as in this case.

On the other side, the claims with which the Department is dealing are relatively small in amount, usually a few hundred pounds. The claims arise on an insolvency and the claimants are often people who have lost such monies as they had when the company became insolvent. Such claimants often cannot afford legal representation, or if they could, would not regard the cost as worthwhile having regard to the amount at stake. It follows, therefore, that Industrial Tribunals are often deprived of assistance from advocates when dealing with such cases. It also follows that they will rely heavily upon the EAT to give them guidance as to their proper approach. Whilst there is a right of appeal, with leave, from this Court to the Court of Appeal, a claimant who has lost will be unlikely to have sufficient incentive to pursue the case further, and, there may be cases where the Department, quite properly, might wish to settle an appeal rather than have the law as stated by the EAT reviewed by the Court of Appeal. It is especially important, therefore, that when giving guidance to Industrial Tribunals in cases such as these, the EAT should state the law clearly and correctly.

There is no doubt that the EAT sought to undertake this task when giving judgment in the Buchan & Ivey appeals, but we are aware of concerns expressed about the correctness of the decision. As my distinguished predecessor said in that case:

"We grant leave to appeal. As already observed, these cases are increasingly common. If we have misinterpreted or misapplied the law, it would help us, the industrial tribunals and those responsible for giving advice to have a corrective ruling as soon as possible from the Court of Appeal."

Contrary to what the Industrial Tribunal believed in this case, we were told by counsel that Mr Ivey never pursued his appeal, and that Mr Buchan's appeal was withdrawn. We do not know whether his appeal was compromised or simply withdrawn.

The basis of the concerns referred to lies in the fact that the EAT was apparently prepared to disregard the separate legal status which a company enjoys, separate and distinct from the person or persons who control it.

In the Lee case, Mr Lee was the governing director in whom the full government and control of the company was vested by virtue of the Articles of Association, which also empowered him, as sole director, to exercise all the powers of a director and all the powers of the company save for those to be exercised at general meetings. He entered into a [genuine, in the sense of it not being a sham] contract of service with the company under which he was contracted to fly the company aeroplane, servicing the company's customers' orders for crop spraying. Counsel for the Respondents in the Privy Council, as reported, made this submission, amongst others:

"The difficulty here is to find out what is the contract; Lee as governing director, had power to make a contract with himself; it is a very difficult concept how he could have that dual capacity at one and the same time - how could he give himself orders? He cannot exercise control over himself; can he dismiss himself for misconduct? Can a person be a servant when he himself is in control? It is submitted that as a practical matter he cannot. Control means a real living person to control another real living person."

That submission was rejected by the Privy Council. The Board started by an analysis of the terms of the agreement between Mr Lee and his company pursuant to which he carried out his crop-spraying duties. As it was put, at page 25:

"It cannot be suggested that when engaged in the activities above referred to the deceased was discharging his duties as governing director .....A contractual relationship could only exist on the basis that there was consensus between two contracting parties. It was never suggested (nor in their Lordships' view could it reasonably have been suggested) that the company was a sham or a mere simulacrum. It is well established that the mere fact that someone is a director of a company is no impediment to his entering into a contract to serve the company. If then, it be accepted that the respondent company was a legal entity their Lordships see no reason to challenge the validity of any contractual obligations which were created between the company and the deceased."

Reference was then made to the case of Salomon v Salomon

[1897] AC 22

and the Opinion continued, at page 26:

"Always assuming that the company was not a sham then the capacity of the company to make a contract with the deceased could not be impugned merely because the deceased was the agent of the company in its negotiation. The deceased might have made a firm contract to serve the company for a fixed period of years. If within such period he had retired from office of governing director and other directors had been appointed his contract would not have been affected. The circumstances that in his capacity as a shareholder he could control the course of events would not in itself affect the validity of his contractual relationship with the company [our emphasis]. ... In their Lordships' view it is a logical consequence of the decision in Salomon's case that one person may function in dual capacities. There is no reason, therefore, to deny the possibility of a contractual relationship being created as between the deceased and the company."

Here, it can be said that the applicant entered into what must be accepted as a genuine contract made between himself as managing director and the company, Magnatech UK Ltd. That contract would have survived him ceasing to be a director, or any change in his shareholding. The performance of his duties was for the company's benefit who stood to profit from the value of the service he rendered to the company. If the company cannot, as it cannot, be dismissed as a mere simulacrum, and if the contract was not a sham then the contract must be categorised as either a contract of service or for services. There is nothing in the statute which says that 'one man companies' [a 'nickname' which does not much help the reasoning process] fall into some kind of special category.

The essential reason [see for example paragraph 12] why the EAT in the Buchan & Ivey appeals distinguished the Lee case was because it seemed to them that in the context of employment legislation it would be impossible to conceive of circumstances in which events giving rise to a claim for compensation could not have occurred without the individual claimant's concurrence. How could it be thought that Parliament conferred on an individual a right to bring proceedings to claim compensation for an act which could not have happened without his consent?

We can all see the force of this point. On the other hand, it is to be noted that in very many cases where a company has gone into liquidation, the Directors could be said to have mismanaged the company and to have brought about the very event which triggered their entitlement to a claim against the Secretary of State. It cannot be suggested that any such person who can be identified as being the author of his own misfortune loses his statutory rights. An Industrial Tribunal is not required to assess fault. Further, as we understand the decision in Buchan & Ivey , and as was accepted in argument, Mr Bottrill's status as an employee would depend upon him continuing to hold the majority of the issued share capital. In other words, if he had transferred his share to Mr Wilson, who had hitherto been an employee director, Mr Bottrill would become an employee and Mr Wilson would cease to be one. It seems to us unlikely that the status of a contractual relationship should change in this way. Again, if Mr Bottrill entered into an agreement to vote his share in accordance with the directions of a third party, such as a creditor of the company, it might appear that he no longer had control over his own destiny, and, presumably, would then become an employee. If Industrial Tribunals are to apply the Buchan & Ivey decision they will, presumably, need to inquire into the claimant's rights to the shares to ascertain who is the true beneficial owner of them [or it, as the case might be].

Furthermore, the scheme of the legislation ,and the obligations upon the Secretary of State might not be thought to give rise to the potential absurdity which the EAT, in that case, were trying to avoid. Under section 182 of the Employment Rights Act 1996, a claimant must satisfy the Secretary of State that his employer has become insolvent [which is defined in the next section], that his employment has been terminated and that he is entitled, at some specified date, to be paid the whole or part of a specified debt owed by the company to him. The employment relationship, in an insolvency situation as defined, comes to an because of the insolvency, either as a matter of law, or through the act of the receiver. The Directors will not have power to resist the dismissal. The debts are:

(a) arrears of pay, to include various specified sums

(b) monies in lieu of notice

(d) any basic award for unfair dismissal

(e) the return of premiums paid by an apprentice.

It seems to us unlikely that a controlling shareholder director will, in anticipation of an insolvency, deliberately not pay himself wages or holiday pay because he knows that he can claim them against the Secretary of State. The usual position is that those who know a company is about to become insolvent take steps to make sure they remove from the company at least what is due and owing to them. If, otherwise than in the normal course of business, a director tried to organise affairs so that the Secretary of State became liable, the Tribunal would probably be able to deny his claim on the basis that it was not truly a debt owed by the company to him either because he had 'given the company time to pay' or because it was not truly owing at the date of the insolvency. It is unlikely, we think, that such a controlling director can, through the use of his own power, procure a liability which would not otherwise exist to any greater extent than a director who has no such control. It is inherently unlikely that he can deliberately procure a liability to pay wages to himself.

In relation to monies in lieu of notice, including holiday pay, it can be said of most incompetent boards of directors that they have brought about their own company's downfall and that they lost their jobs without notice due to that fact. Mr Bottrill was, as far as we know, no more responsible for the fact that his employment came to an end abruptly, than was Mr Wilson, his fellow director. The liability of the Secretary of State to pay monies in lieu of notice is not likely to be increased in the case of a director who is also a controlling shareholder.

That leaves the basic award, following an unfair dismissal complaint. It seems to us that it is most unlikely that an Industrial Tribunal would be fooled into making a finding of unfair dismissal, let alone into making any award, in favour of a person who procured his own dismissal, in the sense that he could not be dismissed without his own consent. The reason why that is improbable is because it could be said, with force, that the termination of the contract was by mutual consent; and in any event that it would not be just and equitable to make him any award.

It follows, therefore, that none of us is convinced by the proposition that Lee should be distinguished because that was not a case concerned with the application of a statutory employment rights regime. It seems to us that, apart from the context, Lee is indistinguishable. We are not persuaded that the difference in context justifies the difference in result. On the other hand, the EAT had recently considered the matter with care in Buchan & Ivey and had laid down some guidelines and it would be regrettable if, about a year later, another division of the EAT were to suggest a different approach, since consistency is, we think, an important aspect of any mature judicial system. The dilemma facing the Court has been resolved, we think, by a helpful decision of the Court of Session.

After the hearing of this appeal, and after a draft judgment had been prepared but before it had been handed down, the EAT received a letter from the Treasury Solicitor which said that Ms Eady had recently become aware of a decision of the Court of Session in Scotland to which our attention should be drawn. The case is Fleming v Secretary of State for Trade & Industry . There, the judgment was given at the end of July 1997. It was first reported, as far as we are aware, in the December edition [12 December] of The Industrial Relations Law Reports at page 682. Ms Eady became aware of it before it was reported, but after completion of the oral argument in this case. We would like to thank her for her assistance: she was right to draw the case to our attention so soon as she became aware of it. It is a matter of some surprise to us that the Department had not previously drawn this case to the attention of either the Treasury Solicitor or their counsel. However that may be, we have received written representations from the parties as to the effect of this case and have revised our judgment in the light of it.

The Court of Session dismissed an appeal against the EAT's refusal to overturn a decision of an Industrial Tribunal which held that Mr Fleming, who was a director and majority shareholder, was not an employee. The Court held that the fact that the applicant was a majority shareholder was a relevant fact to be taken into account in determining whether a person was an employee or not. The question at issue was a question of fact and the significance of the shareholding as a factor would depend upon the circumstances. The Court was referred to the EAT's decision in Buchan & Ivey and observed that it appeared that the EAT had "come very near to asserting the existence of a rule of law, if they do not quite reach that point". Lord Coulsfield's judgment continues:

"As we have indicated, the argument which we have heard in the present case is limited and we did not have the assistance of submissions from a legal representative of behalf of the appellant. In these circumstances we would not wish to go too far in expressing any opinion. Nevertheless, we can say that in view of the long-standing rule, to which we have referred, that the question whether or not a person is an employee is a question of fact, we would be reluctant to see the introduction of any purported rule of law into this area of the decision. We note in particular that in Buchan some reliance is placed on the proposition that a controlling shareholder can prevent the company from dismissing him. We are uncertain how that factor would apply in a case like the present, where it was the liquidator who dismissed the appellant. We did not hear argument on that matter, however, and we need express no view on it. It can easily be seen, as we have said, that the fact that the claimant is a majority shareholder is always a relevant factor. Normally it will be an important factor and there may well be cases in which it is decisive. We are not, however, convinced that it would be proper to lay down any rule of law to the effect that the fact that a person is a majority shareholder necessarily and in all circumstances implies that that person cannot be regarded as an employee, for the purposes of the employment protection legislation."

In written submissions the Secretary of State contended that the passage cited above is obiter to the ratio of the decision in Fleming , that the Court expressly left open the question as to the extent to which Buchan & Ivey laid down a rule of law, and that Fleming can be distinguished on its facts. In our view, the doubt which the Court of Session expressed as to whether the EAT in Buchan & Ivey had reached the point of laying down 'a rule of law' may be resolved by reference to the submissions which Ms Eady made to us and to those which found favour with our former President. In our view, there is no doubt that the EAT in Buchan & Ivey was proposing a rule of law in the following passage of the judgment:

"If the claimant is able, by reason of a beneficial interest in the shares of the company, to prevent his dismissal from his position in the company, he is outside the class of persons intended to be protected by the provisions of the [1996] Act and is not an employee within the meaning of the Act."

As we have made clear, in our judgment, the reasoning behind the rule of law is with think, with great respect to the former President of this Court, unsound. Fortified by the judgement in Fleming , we can now make it clear that in our judgment there is no such rule. The higher courts have taken the view that the issue as to whether a person is or is not an employee is a pure question of fact. The shareholding of a person in the company by which he alleges he was employed is a factor to be taken into account, because it might tend to establish either that the company was a mere simulacrum or that the contract under scrutiny was a sham. In our judgment it would be wrong to say that a controlling shareholder who, as such, ultimately had the power to prevent his own dismissal by voting his shares to replace the board, was outside the class of persons given rights under the Act on an insolvency. That was the submission made on behalf of the Secretary of State in Buchan & Ivey , which found favour with the Court, and was the same submission made to us by Ms Eady in the present case.

On this analysis, we consider that the Industrial Tribunal were entitled to conclude that there was a genuine contractual relationship between Mr Bottrill and his company. At the time the contract was made, it was anticipated that there would be another controlling shareholder. The terms of his contract were compatible with an employment relationship; his dismissal occurred by reason of the insolvency and not of his own volition; (he had not dismissed himself). The Tribunal's approach and findings at paragraphs 6, 9 and 12 [already cited], conclude the appeal in Mr Bottrill's favour, if, as we have held, there is no rule of law of the sort contended for on the Secretary of State's behalf:

"The Tribunal accepted the submission of the applicant [that] although he had control of the company because of his one share and therefore 100% shareholding, the real control was held by the American Group of Companies which supplied all items for sale and this group would become the actual controlling shareholder when the shareholders' agreement came into force ... In this case it was quite clear that the position at the time the company went into receivership was still a temporary position prior to a shareholders' agreement being signed. The 100% shareholding was theoretical rather than actual. Consequently the tribunal considered that it was appropriate to look at the evidence and to decide facts which pointed to the applicant being an employee as well as managing director of Magnatech UK Ltd and also facts which pointed to the applicant being merely a managing director and not an employee ..."

In our judgment the Industrial Tribunal have carefully and properly weighed the competing factors and have arrived at a conclusion which is unimpeachable on the facts, and was a decision with which we unanimously agree.

The appeal is dismissed.

At the end of the hearing, and before our attention had been drawn to the decision in Fleming , we indicated to the parties that we would grant leave to appeal to the loser. It would be wrong, we think, to change our minds in the light of that case, and, accordingly, the Secretary of State may have leave to appeal this decision, although, no doubt, careful consideration will be given as to whether an appeal should be brought, having regard to the recent, clear judgment of Lord Coulsfield in the Court of Session.