(1) Paul Brown (2) Daniel Heald v Secretary of State for Business & Trade — 2025

The two claimants, who were the sole directors and equal 50% shareholders of BHP Global Limited at the time it entered creditors' voluntary liquidation on 29 November 2023, applied to the Secretary of State for payment from the National Insurance Fund of a statutory redundancy payment, notice pay, holiday pay and compensatory pay. The Secretary of State denied liability on the basis that the claimants were not employees, and also argued that the s.188 claims were out of time. The hearing before Employment Judge Gardner on 28 February 2025 was confined to the issues of time limits and employment status.

On time limits, the tribunal found that although the s.182 claims were brought after the three month period, the claimants had filed an earlier in-time claim which had been rejected on the mistaken basis that an ACAS early conciliation certificate was required. The tribunal held that claims under s.166 and s.188 of the 1996 Act are not 'relevant proceedings' for the purposes of s.18A of the Employment Tribunals Act 1996, so no certificate was needed; the claimants had acted reasonably in following the Tribunal's guidance, and the further claim was brought within a reasonable period thereafter. The s.188 claims were therefore in time under s.188(2)(b), and the s.166 claim was accepted as in time.

On employment status, the tribunal found that the claimants were not employees of the company at the relevant date. The judge noted that the claimants were the only two directors and 50/50 shareholders, made all decisions about staff and the company's future, reported to no one but themselves, and were able to and did vary both their hours and their remuneration (taking less than £10,000 per year in salary in 2022 and 2023 while also paying themselves dividends of £44,000 and £10,306 respectively). The written contracts of employment, drawn up on accountant's advice to be 'compliant', were not documents either party was required to observe. The tribunal concluded there was no genuine employment relationship in place at the time of liquidation, and the claim for payment from the National Insurance Fund was not well-founded and was dismissed.