Case 1405457/2023 · Employment Tribunal
Ms A Kendrick (lay representative) For the First v Barnes Dry Lining Ltd (in Liquidation) and 1 other — 2024
- Case reference
- 1405457/2023
- Decision date
- 2 April 2024
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Bax Dated
Parties
3 namedClaimant
Ms A Kendrick (lay representative) For the First
Key findings
Tribunal's reasoningThe Claimants, Mr N Harris and Mr C Barnes, brought monetary claims for unpaid wages, accrued but unpaid holiday, breach of contract in respect of notice, and redundancy payments against their former company (Barnes Dry Lining Limited, in liquidation) and against the Secretary of State for Business and Trade under sections 166 and 182 of the Employment Rights Act 1996. At the start of the hearing the Claimants withdrew their claims against the First Respondent on the basis that there were no funds, and those claims were dismissed upon withdrawal. The remaining issue against the Secretary of State was determined as a preliminary point: whether the Claimants had been employees of the company.
Employment Judge Bax found that each Claimant had become a 50% shareholder and director of the company (Mr Harris in 2009, Mr Barnes also in 2009 on the retirement of his father), and that from 2010 onwards their remuneration arrangements were not consistent with an employer-employee relationship. For many years both Claimants were paid by PAYE at sums below the tax, national insurance and minimum wage thresholds, with the bulk of their income arriving as dividends paid by virtue of their shareholding. The Judge found that the Claimants determined what work they did and how to do it, that supervision by main contractors, site teams and the company accountants was not control exercised by the company, and that neither Claimant could in reality discipline or outvote the other.
The Judge concluded that from 2010 until the insolvency of the company neither Claimant was expressly or impliedly subject to the control of the company and that the remuneration arrangements, including the Claimants' ability to change their own method of payment at will in the final year, were inconsistent with employee status. Accordingly the Claimants were not employees at the relevant time and the claims against the Secretary of State were dismissed.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | Claim against the First Respondent (company in liquidation) was dismissed upon withdrawal. Claim against the Second Respondent (Secretary of State, under ss.166 and 182 ERA 1996) was dismissed on the preliminary issue that the Claimant was not an employee of the company from 2010 onwards. | Dismissed | — | — |
| Holiday pay | Claim for accrued but unpaid holiday. Against the First Respondent: dismissed upon withdrawal. Against the Second Respondent: dismissed on the preliminary finding of no employee status. | Dismissed | — | — |
| Breach of contract | Breach of contract claim in relation to notice. Against the First Respondent: dismissed upon withdrawal. Against the Second Respondent: dismissed on the preliminary finding of no employee status. | Dismissed | — | — |
| Redundancy | Claim for a redundancy payment from the Secretary of State under s.166 ERA 1996. Against the First Respondent: dismissed upon withdrawal. Against the Second Respondent: dismissed on the preliminary finding that the Claimant was not an employee. | Dismissed | — | — |
| Working time regulations | The gov.uk listing referenced Working Time Regulations, but the judgment text describes the holiday element under the unpaid-holiday/breach claims rather than a separate WTR claim. Marked 'other' with low confidence because the judgment does not separately adjudicate a distinct WTR claim. | Other | — |
Legal tests applied
1 reference- sections 166 and 182 of the Employment Rights Act 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
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