(1) MR D R HAUXWELL (2) MRS S HAUXWELL v (1) SECRETARY OF STATE FOR TRADE & INDUSTRY (2) INDUSTRIAL WOODWORKING SERVICES (IN LIQUIDATION) [2002] UKEAT 386_01_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 386_01_1906Case No Appeal No. EAT/386/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR D R HAUXWELL (2) MRS S HAUXWELLAPPELLANT(1) SECRETARY OF STATE FOR TRADE & INDUSTRY (2) INDUSTRIAL WOODWORKING SERVICES (IN LIQUIDATION)RESPONDENT
Before
Mr Justice Wall Mr D J JenkinsDate 19 June 2002
[1]APPEARANCES For the Appellants THE APPELLANTS IN PERSON For the First Respondent For the Second Respondent MS MELANIE HALL QC One of Her Majesty's Counsel Instructed by: Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS No appearance or representation by or on behalf of the Second Respondent MR JUSTICE WALL Mr Douglas Raymond Hauxwell and his wife Sandra Hauxwell appeal individually against the Decision of the Employment Tribunal held at Newcastle upon Tyne on 1 February 2001 and promulgated on 27 February 2001. The unanimous Decision of the Tribunal was that Mr and Mrs Hauxwell were not the employees of a company called Industrial Woodworking Services Ltd (In Liquidation) and thus were unable to make a claim against the Secretary of State for Trade & Industry under Chapter VI of the Employment Rights Act 1996 .[2]The case raises in a stark form a question which has been addressed by the Employment Appeal Tribunal and the Court of Appeal on a number of occasions namely: in what circumstances can directors and shareholders of limited companies be properly described as employees of those companies for the purposes of making a claim against the Secretary of State for Trade & Industry under section 166, 167 and 182 of the Employment Rights Act 1996 ? Those sections read, where relevant:- 166 Application for payments(1) Where an employee claims that his employer is liable to pay to him an employer's payment and either ……. (b) that the employer is insolvent and the whole or part of the payment remains unpaid, the employee may apply to the Secretary of State for a payment under this section."(2) In this Part, "employer's payment" in relation to an employee, means – (a) a redundancy payment which his employer is liable to pay to him under this Part ….. 167 Making of Payments (1) Where on an application under section 166 by an employee in relation to an employer's payment, the Secretary of State is satisfied that the requirements specified in subsection (2) are met, he shall pay to the employee out of the National Insurance Fund a sum calculated in accordance with section 168 …… (2) The requirements referred to in subsection (1) are – (a) that the employee is entitled to the employer's payment, and (b) that one of the conditions specified in paragraphs (a) and (b) of subsection 1 of section 166 is fulfilled 182 Employee's rights on insolvency of employer If, on an application made to him in writing by an employee, the Secretary of State is satisfied that – (a) the employee's employer has become insolvent, (b) the employee's employment has been terminated, and (c) on the appropriate date the employee was entitled to be paid the whole or part of any debt to which this Part applies, the Secretary of State shall ….. pay the employee out of the National Insurance Fund the amount to which, in the opinion of the Secretary of State, the employee is entitled in respect of the debt.[3]Section 230(1) of the Employment Rights Act 1996 defines "employee" and "contract of employment" in the following terms: -(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing[4]In the instant case, the principal reason for the Secretary of State rejecting Mr and Mrs Hauxwell's claims is that they were equal 50% shareholders in their family business. The facts of the case are not in dispute, and can be taken from the Tribunal's Extended Reasons. "2 The facts upon which the Tribunal bases its decision are as follows. We heard evidence from both Mr and Mrs Hauxwell, who informed us that each of them own 50% of the shares in the second respondent [Industrial Woodworking Services Ltd]. They were both Directors of the company. They both hired and fired employees. The company employed about 12-13 employees depending on workload. Mr and Mrs Hauxwell were paid through the PAYE system a fixed salary. On occasions in the past they have been paid Director's fees and dividends. Terms and conditions of employment were issued to them. These were the same as were issued to other employees. Mr and Mrs Hauxwell accepted that any decision in regard to the company and how it was to progress was made as a joint decision between them. They had, and they accept they had complete control of the company. Each of them had different roles in the company but they were not able to dismiss each other. Any decision in regard to finance, etc was to be made jointly. Mr and Mrs Hauxwell acted as joint guarantors of loans made to the second respondents [company]. 3 Unfortunately, the company got into some financial difficulties and eventually a liquidator was called in at the suggestion of the Bank. The liquidator dismissed all of the employees."[5]Those facts were amplified by both Mr and Mrs Hauxwell in their respective Notices of Appeal. Mr Hauxwell recorded that he was first employed as a director in January 1981, and at that stage had sixteen shares. In 1989, the major shareholder of the company wanted to leave, and Mr Hauxwell acquired a further thirty four shares, thereby bringing his shareholding up to one half of the issued share capital. He said that he continued to do the same job when he owned fifty shares as he had done for more than nine years when he owned sixteen. Like all the other employees, he was paid a salary, fixed in advance, and paid PAYE and National Insurance Contributions along with the other employees. He had a written contract of employment: he worked fixed hours, and had the same entitlement to holidays as every other employee. He had no other employment or business interests.[6]Mr. Hauxwell says that on 2 May 2000 he was dismissed by his former employers on the grounds of redundancy. He had at that stage been employed by them for some nineteen years as a director, and on his dismissal he would have been entitled to a redundancy payment of £5,980.00. He had not been paid any of that sum. He had applied to the Secretary of State for payment of £5,980.00, but the Secretary of State had refused to pay. He also claimed additional sums by way of arrears of pay, pay in lieu of notice and accrued holiday pay. Once again, the Secretary of State had declined to make any payment.[7]The letter of rejection by the Secretary of State, dated 21 July 2000, is in our papers. It makes clear that the Secretary of State had rejected the claim on the ground that the Department was not satisfied that either Mr or Mrs Hauxwell held employee status with the company. The relevant passages from the letter are in the following terms:
" Reason for rejecting your above claim: 1. No supervision or guidance 2. Employed as a director The Employment Rights Act 1996 defines an employee as a person who works under a contract of employment, its terms may be expressed in writing or orally, or may be implied. As a result of the Employment Rights Act 1996, contracts of employment are usually given in writing. However, for office holders, under provisions of the Companies Act 1985, all directors must have a written service agreement setting out the terms and conditions of the director's contract as an employee. A copy of this document must be kept at the company's registered office. Office holders may be appointed and removed by a majority vote of the shareholders/members. However, where major shareholder(s) are the appointed official(s) of the company they are in fact in complete control of their situation. None of the criteria mentioned is thus definitive in itself, and the industrial tribunal will strike a balance between those considerations which point towards the existence of a contract of employment and those which are indicative of self employment. I hope the above is of assistance to you. If you wish to appeal against this decision, you should apply on form IT1 to an Industrial Tribunal, naming the Secretary of State for Trade & Industry as the respondent. The time limits for this application and where to obtain the form, were mentioned in our original letter to you."
[8]Before addressing the arguments put to us by Mr and Mrs Hauxwell and by leading Counsel on behalf of the Secretary of State, it is helpful to look, firstly at the Tribunal's Reasons for dismissing the claims of Mr and Mrs Hauxwell and then at the authorities. The Tribunal dealt with the matter in the following way:
"4 We have taken into account the representations of the Secretary of State. He says that under section 230(1) of the Employment Rights Act 1996 Mr & Mrs Hauxwell are not employees and therefore the Secretary of State is not required to make any redundancy payments at all. 5 We have taken into account in coming to our decision Eaton -v- Robert Eaton Ltd and the Secretary of State [1988] IRLR 83 and we have also taken into account Buchan -v- Secretary of State for Employment [1997] IRLR 80 and the other cases which have been quoted to us both by the Secretary of State and by Mr & Mrs Hauxwell. The Originating Application clearly sets out their arguments. 6 Having taken the law into account and taken the facts we have found, we find that the control of the company was in the hands of Mr & Mrs Hauxwell. They decided whether they were paid a wage, they decided how much that wage was, they made decisions in regard to all aspects of the company, they hired and fired. We accept they had terms and conditions of employment. We also take into account that they each had their separate functions within the company. But it was ultimately their company and they made the decisions. They have been paid dividends and Director's fees when the company was in profit. In those circumstances, we cannot find that they are employees within section 230(1) of the Employment Rights Act 1996. Mr and Mrs Hauxwell were the company, they were not employees of it. We find in favour of the Secretary of State."
[9]The two cases identified by the Tribunal are not, we think, well chosen. Eaton v Robert Eaton Limited and the Secretary of State for Employment is a short judgment of the EAT in a constitution chaired by Sir Ralph Kilner-Brown which expresses concern at the number of cases on the point coming before the EAT and stressing that the decision in each case is one of fact. The reasoning of the EAT in Buchan & Ivey -v- Secretary of State for Employment has been disapproved by the Court of Appeal in what is now the leading case on the subject, namely Secretary of State for Trade & Industry -v- Bottrill [1999] IRLR 326 ( Bottrill) . The Tribunal, surprisingly, makes no direct reference to this case, which needs to be looked at in some detail.[10]Mr Bottrill became the managing director and holder of the sole issued share in a company called Magnatech UK Ltd. That shareholding was, however, intended to be only temporary, the ultimate intention being that the Magnatech group of companies in the United States of America would invest in the UK company and acquire some 80% of the equity. A draft agreement giving effect to that arrangement had been prepared, but the company became insolvent before it was executed.[11]Mr Bottrill had signed a contract of employment which set out his duties, his working hours, his holiday and sickness pay entitlement and his remuneration. It provided that he would be paid a salary, set at a level mutually agreed with fellow directors and reviewable on an annual basis. Thereafter, he worked the hours indicated in the contract and had no employment elsewhere. PAYE and National Insurance Contributions were deducted from his salary in the normal way, and he was not paid any director's fees. In addition to Mr Bottrill, the company had one other employee director and two employees.[12]The company got into financial difficulties and in April 1996 a receiver was appointed. Mr Bottrill was dismissed. His claim under the insolvency provisions of the Employment Rights Act for a redundancy payment and other debts owed by the company was rejected by the Secretary of State on the ground that he was not an employee. Mr. Bottrill applied to an Employment Tribunal which upheld his complaint against that ruling.[13]The factors which led the Tribunal to conclude that Mr Bottrill was an employee included the fact that his 100% shareholding was temporary and that his control of the company was only theoretical; that he paid tax and National Insurance as an employee; that he worked fixed hours and was not engaged in any other employment; that he was entitled to holidays and sick pay; and that his contract of employment was signed and dated and indicated that he was an employee.[14]The EAT dismissed the Secretary of State's appeal against that decision, in the process rejecting the reasoning of a differently constituted division of the EAT in a case called Buchan & Ivey -v- Secretary of State for Employment [1997] IRLR 80 ( Buchan & Ivey) , to which the Tribunal in the instant case did refer when giving its reasons. In Buchan & Ivey , the EAT had held that an individual who holds the sole or controlling shareholding in a company, and who therefore can prevent his own dismissal, cannot be regarded as an employee for the purposes of the Employment Rights Act. The Secretary of State in Bottrill appealed to the Court of Appeal.[15]Giving the judgment of the Court in Bottrill , the Master of the Rolls, Lord Woolf said that there was only one issue on the appeal, namely whether a person who is a controlling shareholder of a company can also be an employee of that company for the purposes of the 1996 Act. This was, he recorded, a subject on which there had been conflicting decisions of the EAT. The Master of the Rolls identified in particular the different conclusions reached in Buchan & Ivey on the one hand, in which the EAT, in a constitution presided over by Mummery J, had decided that a controlling shareholder could not be an employee for the purposes of making a claim under the insolvency provisions of the Act; and, on the other, Fleming -v- Secretary of State for Trade & Industry [ 1997] IRLR 682 (Fleming) , in which the Court of Session had not followed Buchan & Ivey and had decided that a controlling shareholder could be an employee. Whether he was an employee or not depended on all the circumstances. That, or course, was also the view taken by the EAT in Bottrill .[16]In Buchan & Ivey , Mr Buchan held 50% of the shares of his company, and Mr Ivey 98% of the shares of his. Mummery J's reasoning in relation to Mr Buchan was as follows:- "The tribunal were entitled, on the material before them, to conclude that Mr Buchan was not an employee of the company but was, through the company, running his own business enterprise. As beneficial owner of 50% of the shares in the company he was able to block any decision by the board or of the company at a general meeting with which he did not agree, including a decision as to his own dismissal or terms of service. In other words, Mr Buchan's agreement was necessary before he could be dismissed summarily or on notice. If he did not agree to a decision to dismiss him then that would not be a 'dismissal' within the meaning of the 1978 Act. It would be a case of what is sometimes called 'self-dismissal'. The intervention of the administrative receiver did not and could not alter Mr Buchan's legal status vis a vis the company."[17]In Fleming , Mr Fleming held 65% of the shares in his company. He worked alongside other employees, and had the same hours of work and no other employment. He was paid under the PAYE system. The company went into liquidation and the Secretary of State refused his claim on the grounds that he was not an employee of the company. That decision was upheld by an Industrial Tribunal. The Employment Appeal Tribunal upheld that decision. In giving the reasons of the Inner House for dismissing the further appeal to it, Lord Coulsfield regarded the fact that Mr Fleming was a majority shareholder as being a relevant and important factor in determining whether or not employment existed, but was not prepared to accept that it was decisive. In the course of his judgment he said:
"We agree that it is well-established that the question whether or not a person is an employee is a question of fact to be decided by the industrial tribunal and that neither the Employment Appeal Tribunal nor this court is entitled to interfere unless the industrial tribunal has in some way misdirected itself or arrived at a conclusion which cannot reasonably be supported."
[18]The Court of Appeal in Bottrill cited a further passage from Lord Coulsfield's judgment as follows:
"In reaching the above conclusion, we have treated the fact that the appellant held a majority shareholding in the company as a relevant factor. We do not see how it could, in common sense, be doubted that the fact that a person is a shareholder is a relevant factor. The significance of that factor will depend on the circumstances, and the weight to be given to it may vary with the size of the shareholding. It is true that, as the appellant pointed out, a change in the size of a shareholding might, on that view, lead to a change in the view taken of the status of a particular person. The decision as to whether a person is or is not an employee must, however, be taken on all the relevant factors at the material time. The shareholding position at the material time must, in our view, be a relevant factor. It will, however, usually only be one of a number of such factors, and it is not impossible that regard might be had to the way in which the person questioned comes to be a shareholder, or to be a majority shareholder. As in any such decision, all the circumstances have to be considered."
[19]Of the two approaches, the Court of Appeal in Bottrill had no hesitation in preferring the approach of the EAT in the case before them, and that of the Inner House in Fleming . The Court of Appeal in Bottrill declined to lay down rigid guidelines for what it described as:
"the factual enquiry which the Tribunal of fact must undertake in the particular circumstances of each case"
. However, it made the following comments:
"The first question which the tribunal is likely to consider is whether there is or has been a genuine contract between the company and the shareholder. In this context, how and for what reasons the contract came into existence (for example, whether the contract was made at a time when insolvency loomed) and what each party actually did pursuant to the contract are likely to be relevant considerations. If the tribunal concludes that the contract is not a sham, it is likely to wish to consider next whether the contract, which may well have been labelled a contract of employment, actually gives rise to an employer/employee relationship. In this context, of the various factors usually regarded as relevant …….the degree of control exercised by the company over the shareholder employee is always important. This is not the same question as that relating to whether there is a controlling shareholding. The tribunal may think it appropriate to consider whether there are directors other than or in addition to the shareholder employee and whether the constitution of the company gives that shareholder rights such that he is in reality answerable only to himself and incapable of being dismissed. If he is a director, it may be relevant to consider whether he is able under the Articles of Association to vote on matters in which in which he is personally interested, such as the termination of his contract of employment Again, the actual conduct of the parties pursuant to the terms of the contract is likely to be relevant. It is for the tribunal as an industrial jury to take all relevant factors into account in reaching its conclusion, giving such weight to them as it considers appropriate."
[20]For the Secretary of State, Ms Melanie Hall QC accepted that there was no clear or simple test which could determine whether or not a shareholder is an employee for the purposes of the Employment Rights Act 1996 . That determination can only be made by having regard to all the facts of the circumstances of each particular case. No one single factor is conclusive. Ms Hall accepted that a Tribunal which treats a controlling shareholding as determinative, without having regard to all the other facts of the circumstances, would commit an error of law. She submitted, however, that the Tribunal in the instant case did not commit such an error. Paragraph 5 of the Tribunal's Decision, she argued, made it clear that in reaching it, the Tribunal had taken into account, not merely the cases it expressly cited, but other cases which had been quoted by both the Secretary of State and Mr and Mrs. Hauxwell. She submitted that it was clear from paragraph 6 of the Decision that the Tribunal had undertaken a balancing exercise between the facts of the circumstances which tended towards the relationship of employment, and those which did not.[21]Ms Hall further submitted that it was clear from the face of the Decision that any significance attached to Mr and Mrs Hauxwell's controlling shareholding did not exclude a proper consideration of other factors. The Tribunal had expressly addressed the fact that Mr and Mrs. Hauxwell were paid a fixed salary on the PAYE system; that there were terms and conditions of employment in the same terms as to the other twelve or thirteen employees; and that Mr and Mrs. Hauxwell each had different roles.[22]Ms Hall submitted that there was ample evidence to justify the Tribunal's Decision that Mr and Mrs. Hauxwell were not employees. In addition to the reasons given in the Decision, the Secretary of State relied on the evidence of both Appellants that they could not dismiss each other; that clause 9 of the contract of employment on grievances was not applicable to the Applicants; and that each was subject to the control and guidance of the other and not of the company.[23]In his clear written and oral submissions, Mr Hauxwell relied on the following passage in the judgment of the Court of Appeal in Bottrill in which it rejected Mummery J's reasoning in Buchan that with a 50% share holding an individual was able to block any decision of the board of the company with which he did not agree. As we understand the reasoning in Buchan and Ivey [1997] IRLR 80 , it is the ability of the shareholder to prevent his dismissal which is crucial and that in turn depends on his ability to use his voting rights to that end. Whilst reference is made by Mummery P to a 'controlling shareholding', it would appear from the facts of Mr Buchan's case that a 50% shareholding would be sufficient to constitute what otherwise would be a contract of employment a contract of some other character. Why this should be so is not immediately apparent. Shareholders in general do not have the right to interfere with management decisions save pursuant to resolutions passed in general meeting. But by then the dismissal may have occurred. If Mr Buchan's fellow director had been the chairman at a board meeting with a casting vote, he could have dismissed Mr Buchan, and even if Mr Buchan sought at a general meeting to procure his reinstatement, his 50% shareholding would not give him the ability to achieve that result. Even Mr Bottrill with the only issued share could in certain circumstances have been dismissed by Magnatech acting by its other director. Miss Eady, when pressed with this, changed the test to being whether the shareholder employee, if dismissed, could procure reinstatement. We mention this simply as an example of the difficulties which arise if the court seeks to imply into the definition of 'employee' tests which Parliament has not seen fit to express.[24]Mr. Hauxwell argued that, were Buchan correct, a change in a 50% shareholder's terms of service, or his dismissal from the company, could not be made without his agreement. A self-dismissal in these circumstances would not be a dismissal within the meaning of the Act. Mr Hauxwell argued that had such a rule been established, the Department's decision to reject his claim on the ground that he was not an employee for the purposes of the 1996 Act would appear to have been justified. However, the Court of Appeal in Bottrill had rejected that approach, and his 50% shareholding was simply one factor amongst many. In his submission, therefore, the Department's reliance on his 50% shareholding and his ability to block decisions as a bar to employee status was misplaced.[25]Mr Hauxwell further pointed out that it was anomalous for an individual to be denied a redundancy payment from National Insurance funds to which he had fully and properly contributed over the years as an employee. Moreover, he argued, it was perverse that somebody who had, by being taxed under Schedule E, foregone the advantages of being taxed Schedule D, should nonetheless not be able to claim the benefits of being taxed as an employee.[26]In summary, Mr Hauxwell argued that the privileged position given to "controlling share ownership" as an indicator of non-employee status which reached its high watermark in the case of Buchan & Ivey was receding. Although reluctant to give any coherent test which could be applied to determining employee status, Lord Woolf in Bottrill suggested two questions:(1) was there a genuine contract of service?(2) did the contract actually give rise to an employee/employer relationship? Mr Hauxwell invited us to answer both questions "Yes". He was, he argued, an employee of Industrial Woodworking Services, employed under a contract of service, as was his wife.[27]We are extremely sympathetic to Mr and Mrs Hauxwell's submissions. We think there is considerable moral force in the proposition that they have, for years, each contributed to the State by way of National Insurance contributions and PAYE. If one were to apply the test of justice to the question, it would undoubtedly, in our view, be just for Mr and Mrs Hauxwell to receive redundancy payments from the Secretary of State. There is, in this case no suggestion that Mr and Mrs Hauxwell are anything other than entirely honest people who have had the misfortune to see their business go into liquidation. All the other employees of the company have received payments from the Secretary of State and Mr and Mrs Hauxwell, understandably, regard it as illogical that they have been excluded.[28]Unfortunately, we cannot apply a "worthiness" test. We are a Tribunal of law. The only question before us is whether or not the Employment Tribunal in this case erred in law in deciding that Mr and Mrs Hauxwell were not employees of Industrial Woodworking Services Ltd. That, as the cases make clear, is an issue of fact. Having examined the facts, the Tribunal has come to the conclusion that they were not. We can only interfere if we are able to detect an error of law on the Tribunal's part.[29]It was, we think, unfortunate that the Tribunal did not make reference to the case of Bottrill in paragraph 5 of its Reasons. It was this fact, amongst others, which persuaded the EAT in a constitution chaired by Mr Recorder Underhill QC to allow the matter through to a full hearing. However, we accept that the Tribunal's omission of any reference to Bottrill does not amount to an error of law. Both Mr and Mrs Hauxwell made reference to the cases of Fleming and Bottrill in their Originating Applications, and it is reasonably clear that the Tribunal, in its reasoning, applied the Bottrill test.[30]We also accept Ms Hall's submission that the Secretary of State's initial decision letter dated 12 July 2000 both cited Fleming and stated in terms that Buchan & Ivey did not establish a rule of law that a controlling shareholding will always be a relevant but not a decisive factor. In addition, in a further letter, the Secretary of State reiterated that the mere fact a major shareholder was an appointed official of the company and in complete control was not of itself decisive. Further, in his written submissions to the Tribunal, the Secretary of State, whilst highlighting the fact that Mr and Mrs. Hauxwell's share ownership meant that it may be argued that they could not possibly have been subject to any control from within the company, nonetheless expressly acknowledged that no one factor would be conclusive.[31]We also accept Ms Hall's submission that the Tribunal undertook a balancing exercise between the facts and the circumstances which tended towards a relationship of employment and those which did not, and that the significance attached to Mr and Mrs. Hauxwell's controlling shareholding did not exclude a proper consideration of other factors, notably that they were paid a fixed salary through the PAYE system and that their terms and conditions of employment were similar to the other employees.[32]Ms Hall also pointed to the Tribunal's Notes of Evidence which demonstrated that the Tribunal had well in mind that both Appellants worked full time in the business of the company; that they were paid weekly; that when they were not majority shareholders they were engaged under the same contract of employment; and that they had only received dividends on two occasions.[33]Ms Hall submitted there was ample evidence to justify the Tribunal's Decision that Mr and Mrs. Hauxwell were not employees. In addition to the Reasons given in the Decision, the Secretary of State relied upon the evidence of both Appellants that they could not dismiss each other; that clause 9 of the contract of employment on grievances was not applicable to them; and that each was subject to the control and guidance of the other and not of the company.[34]We accept Ms Hall's arguments. We cannot find in the overall facts of the case any material factor which the Tribunal has failed to take into account, nor as we indicated earlier, can we detect any error of law in their conclusion.[35]One aspect of the case does, however, give concern. This is what Ms Hall described as "the procedural issue". By letter dated 1 March 2001, Mr Hauxwell protested at the Chairman's decision to combine the separate Originating Applications of Mr and Mrs Hauxwell. The Chairman had written to Mr Hauxwell on 24 November 2000 stating that he was minded to order that both the applications be combined and that unless any objections were received from him or from his wife within seven days, the applications would proceed to listing to be heard together.[36]Mr Hauxwell replied that he did not object to this course because the individual claims were based on the same facts. He was, however, under the impression that although the cases would be heard together, they would not be heard as one.[37]On 19 March 2001 the Chairman refused an application for a review on the ground that it had no reasonable prospect of success. The reasons he gave were that the two cases were combined after notice having been given to the parties by a letter dated 24 November 2000. No objection was received to the combination of the cases. There was no error on the part of the Tribunal. In any event, there was a common question of law and fact for determination whether the Applicants were employees and able to claim against the Secretary of State.[38]Ms Hall accepted that even where the cases were combined, the parties were not to be treated as one, and that the Tribunal must consider each case separately. She further acknowledged that the Tribunal's Decision did not expressly state that this had been done.[39]However, she argued that given the facts of the case and the manner in which the claims were presented, it was hardly surprising that the Tribunal's Decision was the same in the case of each Applicant. She pointed out that the Decision letters were in identical terms; both written submissions by Mr and Mrs Hauxwell were identical; the contracts of employment were, save for the name, identical and there were no significant differences between the oral evidence given by both Mr and Mrs Hauxwell.[40]She further argued that although Mr and Mrs Hauxwell had different roles in the company, the differences between those roles were clearly not sufficient to displace the other factors upon which the Decision was based. She submitted that even if Mr and Mrs. Hauxwell had had substantially different roles, that would not be sufficient to vitiate the Decision.[41]In these circumstances, Ms Hall submitted that the combination of the two cases did not vitiate the Decision in either. In particular, as to the common question of law and fact, Mr and Mrs Hauxwell each owned 50% of the shares; those shares were owned in the same company; the circumstances of their redundancy were the same; neither could dismiss the other; grievances arising out of the disciplinary action and all other grievances were to be dealt with by Mr and Mrs. Hauxwell; and each was subject to the control and guidance of the other.[42]We agree with these submissions. It was, in the circumstances, perfectly sensible for the two cases to be heard together. It would, perhaps, have been better if the Tribunal in its Reasons had explained expressly why it reached the same conclusion in each case, but, as Ms Hall submits, we do not think the failure to take that course vitiates the Decision in either case.[43]For all these reasons, sympathetic as we are to Mr and Mrs Hauxwell, their appeals must be respectively dismissed.