Case 1405552/2023 · Employment Tribunal

- IN PERSON FOR THE v - Ms J Whalley — 2024

Case reference: 1405552/2023
Decision date: 8 April 2024
Jurisdiction: England & Wales
Judge: Employment Judge Cadney Dated

Indexed: 23 May 2026

Parties

2 named

Claimant

- IN PERSON FOR THE

Respondent

- Ms J Whalley

Key findings

Tribunal's reasoning

Mr G Rybicki set up Aero Engineering Ltd on 4 September 2013 and was its sole shareholder, sole director and sole employee. The tribunal accepted that the Director’s Service Agreement of 24 September 2013 was not a sham. It found that the agreement provided for personal service and mutuality of obligation, but noted that the control element was difficult because he was the only person who could direct or discipline himself.

In deciding whether the claimant was an employee for the purposes of s230 ERA 1996 and the Secretary of State’s liability under s166 and s182 ERA 1996, the tribunal relied on the broader circumstances as well as the written agreement. It noted that the claimant’s salary under the agreement was initially £7,950 per year, that later P60s showed employment income of £9,498.84 in 2021 and £9,562.80 in 2022, and that the claimant accepted his pay worked out at about £5 an hour and was below the national minimum wage. The tribunal concluded that the absence of any real consideration of minimum wage entitlement, together with the lack of external control, meant the relationship was not a genuine employment relationship.

In the alternative, the tribunal found that by the date of insolvency on 21 September 2022 the arrangement no longer reflected reality. It found that for around six months before insolvency the claimant had not paid himself a salary, and that from 5 July 2021 he had taken full-time employment with In-Space Missions Ltd while continuing unsuccessfully to seek work for AEL in his spare time. The tribunal therefore held that he was not an employee of AEL at the relevant date and dismissed the claim that the Secretary of State was liable to make payments under s166/182 ERA 1996. No monetary award was made.

Claims and outcomes

4 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Redundancy	Claim for statutory redundancy payment under the insolvency payments scheme; dismissed because the tribunal held that the claimant was not an employee of Aero Engineering Ltd at the date of insolvency.	Dismissed	—	—
Breach of contract	Claim for notice pay; dismissed because the tribunal held that the claimant was not an employee of Aero Engineering Ltd at the date of insolvency.	Dismissed	—	—
Unlawful deduction from wages	Claim for unpaid wages; dismissed because the tribunal held that the claimant was not an employee of Aero Engineering Ltd at the date of insolvency.	Dismissed	—	—
Holiday pay	Claim for unpaid holiday pay; dismissed because the tribunal held that the claimant was not an employee of Aero Engineering Ltd at the date of insolvency.	Dismissed	—	—

Legal tests applied

9 references

Official outcome judgment PDF

Gov.uk primary record

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