Moffett v Secretary Of State For Trade & Industry [1997] UKEAT 717_97_1310

EAT

Moffett v Secretary Of State For Trade & Industry

[1997] UKEAT 717_97_1310 · 1997-10-13

JUDGE PUGSLEY :

In this case the appellant is failed to appear. Enquiries have been made by the clerk, and he is not below, and there is no answer from his home when he was telephoned.

It ought to be said right away that Mr Edwards, Counsel from Devereux Chambers, has appeared and helped us in other cases. He has assisted us in one respect in this case in that he has been able to tell us the fate of Buchan v Secretary of State for Employment . He cannot assist us beyond that because he has no authority so to do.

The background is set out in the decision of the Industrial Tribunal. It was agreed between the parties as far as was relevant that Mr Moffett held two shares in the company Virgo Cases Ltd. That was the total issue of capital. He therefore had 100% of the shares of the company. He was only person who could vote to dismiss himself. He lost his employment because of a creditor's voluntary winding up.

The tribunal considered the issue whether or not Mr Moffett was an employee. The tribunal had regard to the case of Buchan & Ivery v Secretary of State for Employment

[1997] IRLR 80

EAT which held that an Industrial Tribunal was entitled to conclude on the material before it that the claimants, in those cases owning respectively 50% and 99% of shares, were not employees as they were able to block any decision including decisions as to their dismissal or terms of service.

The tribunal therefore concluded that Mr Moffett was actually a 100% shareholder, he too could block any decision, including the decision to dismiss him. He was not therefore an employee and accordingly was not entitled to a redundancy payment. His application was therefore dismissed.

In his Notice of Appeal, Mr Moffett says:

"The whole case hinges on an appeal that is going through the High Court. [ He quotes the case of Buchan ] to be decided sometime this year. If their appeal is upheld I would expect to be paid accordingly. If the appeal turned down I will accept this judgment."

The position is this, the tribunal based their decision on the case of Buchan . We are told by Mr Edwards who appears here, that a member of Chambers a Mr Bruce Carr is in Mr Edwards' Chambers. He understands that although leave was given, in fact the matter has not been pursued. The tribunal were bound by the decision of the Employment Appeal Tribunal. We can detect no error of law and therefore this is not a matter we can put before a full tribunal.