EAT JURISDICTIONAL POINTS: Worker, employee or neither
PRACTICE AND DPROCEDURE: Bias, misconduct and procedural irregularity
Employee was for a time also controlling shareholder; was he an employee during that period so as to be able to count the period in assessing continuity of employment? ET said no, and the EAT held that they had properly applied the relevant legal principles and were entitled to reach that decision.
Was the Tribunal entitled to find that the reasonable notice period, absent an express term, was one month only? In principle, yes. However, there was strong evidence that both parties had considered three months to be the appropriate notice period, and the Tribunal should have dealt with that evidence in its judgment.
EAT rejected certain allegations of misconduct by the Tribunal on the grounds that the Tribunal had failed to draw the parties’ attention to certain cases not referred to by the parties but cited in the judgment. There was no unfairness in the circumstances.
EAT accepted, however, that the Tribunal had failed to consider or make findings upon whether the claimant had been dismissed or suffered a detriment for making certain protected disclosures, and certain other matters. Case remitted to a fresh tribunal to determine these outstanding issues. This was linked to the Tribunal’s award of costs, which also will need reconsideration.
Observations on the relevant criteria to consider when seeking to determine whether a controlling shareholder is also an employee.
Elias J, P
[2008] UKEAT 0225 – 07 – 2902, [2008] ICR 635, [2008] IRLR 364
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.266071
